Appendix — Koon v. United States

i

Supremes Court, vu.

c~ FILED

* Bh 66'4 APR 1 0 1995;

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1994

STACEY C. KOON,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

APPENDIX

JOEL LEVINE *THEODORE B. OLSON

16000 Ventura Boulevard THEODORE J. BOUTROUS, JR.

Suite 500 JOHN K. BUSH

Encino, CA 91436 JONATHAN K. TYCKO

(818) 995-6052 GIBSON, DUNN & CRUTCHER

1050 Connecticut Ave., N.W.

IRA M. SALZMAN Washington, D.C. 20036

600 South Lake Avenue (202) 955-8500

Suite 410

Pasadena, CA 91106

(818) 578-0043

Attorneys for Petitioner

* Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208

la

APPENDIX A

UNITED STATES of America, Plaintiff-

Appellee, Cross-Appellant,

v.

Stacey C. KOON, Defendant-Appellant,

Cross-Appellee.

UNITED STATES of America, Plaintiff-

Appellee, Cross-Appeliant,

v.

Laurence M. POWELL, Defendant-Appellant,

Cross-Appellee.

Nos. 93-50561, 93-50608, 93-50562

and 93-50609

United States Court of Appeals,

| Ninth Circuit.

Argued and Submitted May 2, 1994.

Decided Aug. 19, 1994.

Before: BROWNING and FLETCHER, Circuit Judges, and

FITZGERALD, * District Judge.

FLETCHER, Circuit Judge:

Stacey Koon and Laurence Powell ("appellants") appeal their

jury convictions for deprivation of rights under color of state law —

in violation of 18 U.S.C. § 242. The United States appeals

Koon's and Powell's sentences under the Sentencing Guidelines.

We affirm the convictions but remand for resentencing.

* Honorable James M. Fitzgerald, Senior United States District Judge for the

District of Alaska, sitting by designation.

BACKGROUND

The arrest of Rodney King occurred in the early morning of

March 3, 1991 in Los Angeles. After drinking malt liquor with

two friends, King left a suburb of Los Angeles and began

driving. At this time he was intoxicated. Officers Melanie

Singer and Tim Singer, both California Highway Patrol ("CHP")

officers, observed King's vehicle speeding on the 210 Freeway.

The officers began to pursue the vehicle and called on the sadio

for help. Several Los Angeles Police Department ("LAPD")

units joined in the pursuit. Among these units was one manned

by Powell and his trainee, codefendant Timothy Wind. The

pursuit ended when King pulled his car over at an entrance to the

Hansen Dam Recreation Area on Osborne St.

The officers ordered King and the other occupants of the

vehicle to get out of the vehicle and assume a felony prone

position (i.e., King was ordered to lie on his stomach with his

arms behind his back, legs spread, heels turned away from the

officers). King got out of the car but did not lie down. At this

time Sergeant Koon arrived and took command. Police officers

Ted Briseno and Roland Solano arrived soon after. The officers

again ordered King to lie in a felony prone position.

King eventually got down on his hands and knees, but did

not get into the felony prone position. Officers Powell, Wind,

Briseno, and Solano attempted to place him in that position using

a "team takedown” or "swarm." King became combative and the

officers retreated. Koon then fired taser darts into King.

The events that occurred next were captured on videotape by

George Holliday (the “Holliday videotape"). This videotape was

the focus of much of the testimony at trial and is described in

detail in the district court's sentencing opinion. See United

States v. Koon, 833 F. Supp. 769, 774-80 (C.D. Cal. 1993).

The following description of the events tracks the relevant time

frames on the Holliday videotape.

As the videotape begins, it shows that King got to his feet in

an attempt to escape. Powell and Wind began to strike King

with their batons. At trial it was disputed whether Powell's first

blow hit King in the head. The district court concluded that

3a

Powell struck King's head accidentally. /d. at 777. King fell to

the ground and attempted to rise. At 18 seconds, Briseno put his

hand on Powell's baton, which Powell had raised as he stood

above King.

From 18 to 30 seconds, King attempted to get up, and was

struck with batons by Powell and Wind. Prom the 35th second

to the Sist second, Powell struck King repeatedly. At

approximately 43 seconds, one or more of Powell's baton blows

fractured King's right leg. At 55 seconds, Powell struck King

on the chest or upper abdomen. After this blow, King rolled

onto his stomach and lay prone. At this point the officers

suspended the use of force and stepped back for about ten

seconds. Powell began to reach for his handcuffs. The district

court found this movement to be evidence that Powell perceived

King no longer to be a threat. Jd.

At 1:05, Briseno moved forward and used his left foot to

stomp King in his upper back or neck. King's body writhed in

response. At 1:07 on the videotape, Powell and Wind began to

strike King again with their batons. At approximately 1:29,

King put his hands behind his neck and subsequently was

handcuffed.

After King was handcuffed, Powell radioed for an

ambulance. Powell sent two messages over the Mobile Digital

Terminal to other officers that said “ooops” and "I havent [sic]

beaten anyone this bad in a long time." Koon sent a message to

the police station that said “U[nit] just had a big time use of

force... . Tased and beat the suspect of CHP pursuit big time.”

King was taken to Pacifica Hospital, where he was treated

for a fractured right leg, multiple facial fractures, and multiple

bruises and contusions. At the hospital, Powell learned that

King worked at Dodger stadium, and said to him, "We played a

little ball tonight, didn't we Rodney?" King said, “I don't

know." Powell said, "You know, we played a little ball, we

played a little hardball tonight, we hit quite a few home runs."

King responded, “Yeah I guess so." Powell said, “Yes, we

played a little ball and you lost and we won."

4a

Koon, Powell, Wind, and Briseno were tried in state court in

Simi Valley, California on charges of assault with a deadly

weapon and excessive use of force by a police officer. At the

trial, Koon, Wind, and Powell's defense was that the force used

during the arrest of King was justified and was not excessive. In

contrast, Briseno testified that excessive force was used but that

he had tried to prevent its use. The four officers were acquitted

on all charges except for one count against Powell on which the

jury hung.

On August 4, 1992, a federal grand jury indicted the four

officers. Count 1 of the federal indictment charged Powell,

Wind and Briseno with willfully depriving King of his

constitutional rights in violation of 18 U.S.C. § 242 and with

aiding and abetting each other in violation of 18 U.S.C. § 2.

Count 2 charged Koon with willfully permitting the other

officers to unlawfully strike King and willfully failing to prevent

the assault of King by officers in his presence, in violation of 18

U.S.C. § 242.

The case was tried to a jury commencing February 25, 1993.

The jury verdicts were handed down on April 17, 1993.

Officers Briseno and Wind were acquitted. Officer Powell and

Sergeant Koon were found guilty of violating § 242. Koon and

Powell were sentenced on August 4, 1993 to thirty months

imprisonment and «wo years of supervised release. See Koon,

833 F.Supp. at 792. Appellants timely appealed their

convictions and the government timely appealed the sentences.

We have jurisdiction.

of the government's rebuttal case, was the subject of many

motions in the district court, and continues to be the subject of

various claims on appeal.

Briseno's testimony was highly damaging to Koon and

Powell. He testified, among other things, (1) that Powell's first

Sa

blow hit King in the face—which was inconsistent with Powell's

position at trial; (2) that Powell delivered a second series of

much more forceful blows to King “from the shoulder up”;

(3) that Briseno couldn't see or understand what justified the

other officers’ behavior; (4) that Briseno grabbed Powell's baton

and told him to “get the hell off" King; (5) that Briseno yelled to

Koon “what the fuck [is] going out here,” but Koon did not

respond; (6) that the officers continued to strike King with the

baton when he was neither aggressive nor combative: and

(7) that Briseno went to the police station after the incident

intending to report the use of force.

At the state trial, Briseno was cross-examined by all three of

his codefendants as well as the prosecutor, who spent part of his

time trying to establish Briseno's own culpability. On both

direct and cross-examinaiion, Briseno stated repeatedly that he

thought the other officers had acted wrongly. These statements

of opinion were redacted from the videotape played at the federal

trial.

On appeal, Koon and Powell contend that admission of the

videotape violated their Confrontation Clause rights. They also

argue that the videotape should not have been admitted as

rebuttal evidence, and that it contained improper lay opinion

evidence.

1. Confrontation Clause Challenge

criminal process by ensuring that the trier of fact has a

Satisfactory basis for evaluating the truth of out-of-court

Statements." Barker v. Morris, 762 F.2d 1396, 1399 (9th Cir.

1985) (citations omitted). When a orsay declarant is

unavailable to testify at trial, his out-of-court statements may be

admitted without violating the Confrontation Clause so long as

those statements bear sufficient indicia of reliability. Bourjaily

v. United States, 483 U.S. 171, 182-83, 107 S.Ct. 2775, 2782-

83, 97 L.Ed.2d 144 (1987). “[NJo independent inquiry into

reliability is required" under the Confrontation Clause, however,

when the out-of-court statements “fall within a firmly rooted

hearsay exception.” Jd. at 183, 107 S.Ct. at 2782. Since Rule

804(b)(1) is a firmly rooted exception to the hearsay rule, Mattox

6a

v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409

(1895) (discussing history of the exception); United States v.

Kelly, 892 F.2d 255, 262 (3d Cir. 1990), our analysis focuses on

whether the district court erred under Rule 804(b)(1) in

admitting Briseno's former testimony.!

Under Rule 804(b)(1), testimony from another proceeding i r

not excluded by the hearsay rule if the declarant is unavailable,”

and if “the party against whom the testimony is now offered .

had an opportunity and similar motive to develop the testimony

by direct, cross, or redirect examination.”

Appellants argue that the Briseno videotape should not have

been admitted because at the state trial they lacked sufficient

opportunity to cross-examine Briseno. Appellants point out that

in the state proceeding they did not have the benefit of various

enhancements to the Holliday videotape which were available at

the federal trial.

The parties debate whether, given this collapse of the constitutional

analysis into the Rule 804(b)(1) analysis, the abuse of discretion standard

which governs admission of Rule 804(b)(1) evidence should apply, see United

States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984), or whether the court

should review de novo those Rule 804(b)(1) cases in which a constitutional

claim is raised. We need not decide the issue, however, because we conclude

that appellants cannot prevail under either standard. See United States v.

Payne, 944 F.2d 1458, 1468 n.9 (9th Cir. 1991).

2 Appellants do not dispute that Briseno, who chose not to testify in the

federal trial, was “unavailable.”

3-Three enhancements were used at the federal trial: (1) the “filtered

audiotape,” which filtered out helicopter noise and purportedly made audible

certain commands by Koon as well as the sounds of a taser being activated just

before King went down (prepared by the defense); and (2) the “zoom

videotape,” which blew up the frames showing Powell's first blow to King

(prepared by the defense); and (3) the "registered videotape,” which stabilized

the video image (prepared by the government).

In the district court, in addition to arguing that the lack of these

enhancements hampered their ability to cross-examine Bnseno during the state

proceeding, appellants argued that their motive for cross-examination was

[Footnote continued on next page]

7a

We reject appellants’ argument. Appellants had a full and

fair opportunity to cross-examine Briseno in the state trial.

Indeed, they do not argue that the state court in any way

their ability to carry out an effective cross-

They instead claim that the absence of the

of opportunity. We disagree. The failure of a defendant to

discover potentially useful evidence at the time of the former

(9th Cir. 1980), cert. denied, 449 U.S. 1089, 101 S.Ct. 881, 66

L.Ed.2d 816 (1981). In Thomas, the prosecution introduced, at

defendant's second trial, the testimony of a witness from

defendant's first trial who had become unavailable. Jd. at 1384.

By the time of the second trial, the defendant claimed to have

discovered evidence that this witness was schizophrenic. Jd. at

1386 n.34. The Thomas court rejected the argument that the

purported discovery of new evidence established defendant's lack

of opportunity to cross-examine the witness at the first trial.

After noting that there was no suggestion that the defendant's

failure to discover the information was the prosecution's fault,

the court explained that

often information will surface after a trial which, if

known to a defense attorney, would have made the

cross-examination of a witness more thorough or even

more advantageous to the defendant. Nevertheless, the

lack of information does not make the opportunity for

cross-examination ineffective even though the cross-

examination itself is less than optimal for the

defendant.

Id.

[Footnote continued from previous page]

different in the state than in the federal trial because in the federal trial the

Prosecution was required to show a higher level of intent.

Appellants have not pursued this latter argument on appeal.

Much the same applies here. Appellants did not lack the

opportunity to cross-examine Briseno; they lacked only some of

the tools which were later developed by the government or by

appellants themselves, and which appellants argue would have

allowed them to cross-examine Briseno to better effect.

Appellants’ failure to take full advantage of their opportunity to

cross-examine in the first trial—by developing those tools

earlier—cannot alter the fact that they had the opportunity. See

United States v. McClellan, 868 F.2d 210, 215 (7th Cir. 1989)

("the emphasis in [the Rule 804(b)(1)] inquiry is upon the motive

underlying the cross-examination rather than the actual exchange

that took place"); United States v. Salim, 855 F.2d 944, 953-54

(2d Cir. 1988) (under Rule 804(b)(1), defendant is entitled to

"‘an opportunity for effective cross-examination, not cross-

examination that is effective in whatever way, and to whatever

extent, the defense might wish.'") (quoting Delaware v.

Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15

(1985) (per curiam)) (emphasis in original).*

In addition to a full opportunity, Rule 804(b)(1) requires

that appellants’ motive in carrying out their state trial cross-

examination of Briseno was similar to the motive they would

have had in the later proceeding. We conclude easily that it

was. The operative facts and legal issues in the state and federal

trials were substantially similar, see United States v. Salerno,

__—-US. __, __, 112 S.Ct. 2503, 2509, 120 L.Ed.2d 255

(1992) (Blackmun, J., concurring) ("'similar motive’ does not

mean ‘identical motive'"), and appellants do not challenge the

district court's finding to this effect. Appellants thus had every

4 Appellants argue that the newly discovered information Thomas

pertained only to the credibility of the witness, whereas the newly developed

enhancements here pertain to the crime itself. Appellants do not explain why

this distinction matters, however, and nothing in Thomas reveals its

significance either. At the state trial, appellants had the opportunity to cross-

examine Briseno concerning both extrinsic facts about the charged crime, and

circumstances in his own situation which might lessen his credibility. It is that

opportunity, rather than the scope or efficacy of its employment, which is

important under Rule 804(b)(1).

9a

reason to develop Briseno's testimony in the state trial! with an

eye to undermining his credibility and casting into doubt his

Statements about their behavior. See United States v. Poland,

659 F.2d 884, 895-96 (9th Cir. 1981) (holding that defendant's

motive for cross-examination at suppression hearing was similar

~~ Rule 804(b)(1) to his motive for cross-examination at

Appellants maintain that their position is supported by

People of the Territory of Guam v. Hayes, 1993 WL 469357 (D.

Guam 1993), in which a three-judge panel held that the trial

court erred in admitting former testimony because the defendant

had not had the same motive to cross-examine the witness about

certain facts in the first trial as he had in the second trial.

However, the Hayes court made clear that this difference in

motive occurred because “different issues arose at the second

trial which [defendant] could not possibly have anticipated at the

first trial." Id. at *2.5

Here, by contrast, there is no suggestion that either the

factual nature of the case against appellants or appellants’ motive

for cross-examining Briseno changed at all from the first to the

second trial. All that changed was the technology that appellants

might have used to enhanced the Holliday videotape as a basis

for questions in the cross-examination. Because this change

constitutes a deficiency in neither the opportunity to cross-

examine nor the motive for doing so, appellants' argument under

Rule 804(b)(1) must fail.

5The victim in Hayes, "K.,” testified at defendant's first trial, but then

moved from Guam and was unavailable at the second trial. K.'s testimony

from the first trial was introduced at the second trial. The prosecution also

called as a witness Mrs. Muna, who testified about statements made by K.

which were not disclosed at the first trial. The appellate court concluded that

defendant's motive to cross-examine K. was different at the first than at the

second trial, because at the first trial defendant did not have “the additional

motivation . . . of proving that K. didn't make the statements attributed to her

by Mrs. Muna.” id. at *2.

10a

2. Use of Videotape as Rebuttal Evidence

Appellants next contend that even if there was no

Confrontation Clause violation, the district court erred in

admitting the Briseno videotape as rebuttal evidence. As district

courts have wide latitude in deciding what constitutes proper

rebuttal evidence, Geders v. United States, 425 U.S. 80, 86, 96

S.Ct. 1330, 1334, 47 L.Ed.2d 592 (1976), we review such

determinations for an abuse of discretion. Rent-A-Center v.

Canyon Television & Appliance, 944 F.2d 597, 601 (9th Cir.

1991).

Appellants first argue that Briseno's testimony did not rebut

anything presented in their defenses. We disagree. Briseno's

testimony rebutted Koon's statement that Powell's first blow

struck King on the shoulder area rather than on the head, Koon's

expert's testimony that the officers’ use of force was justified

because King continue to be combative and aggressive, and

Powell's former police instructor's testimony that Powell had

done nothing he had not been trained to do.

Appellants next argue that even if some portions of the

videotape properly rebutted elements of their cases, the district

court nonetheless erred in permitting the government to

introduce as rebuttal both those parts of the videotape which in

fact rebutted their evidence, and those parts which were offered

solely against Briseno.®

No one suggests that appellants have standing to appeal any

violation of Briseno's rights which such procedure might have

worked. Appellants instead claim that their own rights were

6 Briseno neither testified nor presented any evidence on his behalf, save for

introducing a single boot, one he had worn the night of the incident. At trial,

he argued that his Fifth Amendment rights would be violated if his former

testimony was admitted against him on rebuttal despite the fact that he had put

on no evidence of his own. He was concerned primarily with those portions of

the videotape in which he testified that he went to the police station to file a

report on the use of force. The government's position was that Briseno never

went to the police station and that his false exculpatory statement was proof of

his consciousness of guilt.

lla

violated because playing the entire redacted videotape as rebuttal

gave the government's case against them "undeserved weight and

dramatic force." Reply Br. of Powell at 23.

We reject this claim. District courts have broad discretion

in deciding the order in which evidence may be presented at

trial. See Fed.R.Eviu. 611(a) (trial courts “shall exercise

reasonable control over the mode and order of interrogating

witnesses and presenting evidence"). Indeed, the Advisory

Committee Notes to Rule 611(a) reveal that the rule was

intended to avoid imposing on the district courts strict rules

concerning the order in which evidence should be present.

Moreover, several courts have held that district courts have wide

discretion to allow the government to introduce as part of its

rebuttal case evidence which might have been presented in the

government's case-in-chief. E.g., United States v. Tejada, 956

F.2d 1256, 1267 (2d Cir. 1992), cert. denied, US. __,

113 $.Ct. 124, 121 L.Ed.2d 80 (1992); United States v.

Braxton, 877 F.2d 556, 561 (7th Cir. 1989).

Here, where it was unclear whether Briseno would testify at

trial, and where playing the videotape during the government's

case-in-chief could have been unnecessarily duplicative, the

district court did not abuse its discretion in allowing the

government to postpone playing the videotape until its rebuttal

case. See Tejada, 956 F.2d at 1267 (“Any other rule would

require attorneys to present evidence in advance to rebut every

possible scenario that defendants might paint"). Moreover,

appellants were allowed to put on surrebuttal. See United States

v. Goodwin, 770 F.2d 631, 638 (7th Cir. 1985) (defendant’ S

aiaaa as diene mieeiiian oe G, toane exhtds

12a

simply a consequence of the joint trial. In United States v.

Papia, 560 F.2d 827, 848-49 (7th Cir. 1977), the Seventh

Circuit held that evidence rebutting one defendant's case could

also be introduced, on rebuttal, against a second defendant even

if that defendant had, like Briseno, presented no evidence. All

codefendants suffer what appellants claim to have suffered here:

the accumulation of evidence of guilt which comes from being

tried with other defendants. In an extreme case, this cumulative

effect may indeed become so unfairly prejudicial that severance

is warranted. But clearly this is not such a case. Cf United

States v. Baker, 10 F.3d 1374, 1386-89 (9th Cir. 1993) (district

court did not abuse its discretion in failing to sever trial lasting

over 16 months and involving 15 defendants, 250 witnesses, and

30,000 pages of transcripts).”

3. Lay Opinion Testimony

Many statements in which Briseno expressed his opinion

about his codefendants' wrongdoing were excised from the

videotape before it was shown to the jury. Appellants contend,

however, that various statements of opinion remained.

Many of the statements about which appellants complain are

simply not opinions. Appellants argue that even Briseno's

descriptions of the other officers’ actions should not have been

admitted. Appellants seem to suggest that these descriptions

were akin to opinions insofar as they revealed that Briseno was

testifying against his codefendants rather than on their behalf.

7 Appellants also contend that the admission of the video as rebuttal was

inappropriate under United States v. Neary, 733 F.2d 210 (2d Cir. 1984),

because they cach had a Rule 29 motion pending. Neary, however, held that

where the district court has erred in failing to grant defendant's Rule 29 motion

at the close of the government's case-in-chief, the government cannot cure the

deficiencies in its proof by pointing to evidence it presented on rebuttal,

because doing so would “make a mockery” of the defendant's right under Rule

29 to acquittal where the government has not satisfied its burden of proof in its

case-in-chief. Id. at 219-20. Neary would thus apply only if the government

proof fell short at the close of its case-in-chief. That is not the case here. See

Section 1, infra.

hd te

l3a

Whomever they have hurt or benefitted, however, the

straightforward physical descriptions in question do not

constitute opinions.

Appellants also contend that Briseno's statement that he

went to the Foothills police station intending to report a use of

force should not have been admitted, because he would not have

taken this action unless he believed that the use of force had been

wrong. We decline to adopt a rule barring testimony about

actions which are motivated by opinions. Actions are usually

motivated by opinions or beliefs, but testimony about the actions

is clearly not for that reason inadmissible. Koon's testimony,

for example, was filled with descriptions of actions he took

because he had formed certain opinions about King's behavior.

Appellants argue that they were prejudiced when the jury

learned of Briseno's statement that Powell was “out of control."

This phrase was removed from the redacted version of Briseno's

testimony presented to the jury. When Koon was recalled as a

surrebuttal witness, however, the prosecutor on cross-

examination twice referred to the fact that Briseno had said that

Powell was out of control. Appellants contend that this

interjection of Briseno's opinion was improper.®

The Federal Rules of Evidence allow lay opinion testimony

so long as the opinion is “(a) rationally based on the perception

of the witness and (b) helpful to a clear understanding of the

8 Appellants’ argument is based on the contention that Briseno's statements

constituted lay opinion testimony. While we reject this argument, see infra, we

note that by questioning Koon about a redacted portion of the Briseno

videotape, the government improperly referred to a matter not in evidence.

We conclude, however, that the error (to which no objection was made) did not

affect substantial rights. The transcript of the videotape which was admitted

into evidence contained opinion statements much more directly damaging to

appellants than the “out of control” statements - such as Briseno's statement

that the force used by Powell and Wind was unjustified. And as discussed

below, see infra Section 1, there was ample evidence quite apart from the

Briseno videotape on which the convictions could be sustained. The “out of

control” statements were a tiny portion of a case which the government tried in

extraordinary detail. See Koon, 833 F. Supp. at 774.

l4a

witness’ testimony or the determination of a fact in issue.”

Fed.R.Evid. 701; United States v. Juvenile Male, 864 F.2d 641,

647 (9th Cir. 1988) (admitting, under Rule 701, witness's

opinion as to defendant's intent); accord United States v. Simas,

937 F.2d 459, 464 (9th Cir. 1991). Both requirements were met

here. First, Briseno's opinions were rationally based on his

first-hand observations. Second, the opinion that Powell was out

of control was helpful in determining factual issues central to the

case. Appellants are wrong that Briseno's statements are no

more than conclusory assertions about ultimate issues. The

ultimate issue in the case was not whether the defendants were

out of control, but whether they willfully used unreasonable

force. The fact that Powell may have been out of control could

have helped the jury resolve that issue; at the same time, it

certainly did not settle the issue in and of itself.? Briseno's

statement thus was not “testimony which merely tells [the jury]

what result to reach." 3 Weinstein's Evidence { 701(02], at 702-

25,10

In sum, we conclude that no error was committed in the

admission of the Briseno videotape.

B. Fifth Amendment Protection Against Use of

Compelled Statements

After they were warned that they could lose their jobs if

they refused to make statements, Koon and Powell gave

9 Moreover, the court admitted characterizations of Powell's actions, which

were helpful to the defense—most notably, Briseno's statement that the first

baton to King's head was accidental. The statement that an officer swinging a

baton is out of control, like the statement that an officer has hit a suspect with a

baton by accident, is both an opinion and an observation.

10 Appellants also argue that Briseno's opinions impermissibly entered the

case when the prosecutor, in closing, stated that Briseno had “testi[fied] that

other people committed crimes,” and that “[t}he videotape of [Briseno's]

testimony shows that the beating of Rodney King was unreasonable.” RT

4/10/93 (AM) at 103. But these statements are better read as permissible

inferences drawn from the factual testimony which the jury heard than as

surreptitious references to the opinion testimony which was excised.

15a

compelled statements to the LAPD Internal Affairs Division.

Appellants contend that the introduction of codefendant

Briseno's state trial testimony and the testimony of prosecution

witness Mark Conta violated their Fifth Amendment rights

because Briseno and Conta were exposed to appellants’

compelled statements prior to testifying.

The Fifth Amendment provides that "[n]o person . . . shall

be compelled in any criminal case to be a witness against

himself." U.S. Const. amend. V. The Constitution thus

requires that “the government seeking to punish an individual

produce the evidence against him by its own independent labors,

rather than by the cruel, simple expedient of compelling it from

his own mouth." Miranda v. Arizona, 384 U.S. 436, 460, 86

S.Ct. 1602, 1620, 16 L.Ed.2d 694 (1966).

In accordance with this fundamental principle, the Supreme

Court has recognized that the Fifth Amendment protection

against coerced statements extends to public employees who

must choose either to incriminate themselves or to forfeit their

jobs during an administrative hearing. Garrity v. New Jersey,

385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967).

Thus, where police officers such as Koon and Powell invoke

their Fifth Amendment rights and subsequently make a statement

under threat of removal from office, the statement is compelled

and the government is precluded from using either the statement

or information derived from it as evidence in the federal trial.

Id. at 497, 87 S.Ct. at 618; see also Kastigar v. United States,

406 U.S. 441, 460-61, 92 S.Ct. 1653, 1664-65, 32 L.Ed.2d 212

(1972).

Once a defendant has demonstrated that his statements were

compelled, the government has the burden of proving in a

"Kastigar hearing” by a preponderance of the evidence that the

evidence it intends to introduce in a subsequent criminal

proceeding is not tainted by exposure to the compelled

statements. Kastigar, 406 U.S. at 461-62, 92 S.Ct. at 1665-66;

United States v. Rogers, 722 F.2d 557, 560 (9th Cir. 1983),

cert. denied, 469 U.S. 835, 105 S.Ct. 129, 83 L.Ed.2d 70

(1984).

16a

In this case, the parties disagree as to the precise type of

showing that is required to establish that a witness who has been

exposed to compelled testimony is not tainted by that exposure.

Our circuit has twice considered this issue in the

testimony that was compelled pursuant to federal immunity

statutes. See 18 U.S.C. § 6002. In both cases, we held that the

government meets its Kastigar burden by showing that each

matter as to which the witness will testify is derived from a

source independent of the immunized testimony."*

In United States v. Lipkis, 770 F.2d 1447 (9th Cir. 1985),

the defendant first made voluntary statements on three occasions

to an FBI agent and subsequently made identical statements to

the same agent under a grant of immunity. Id. at 1449. The

FBI agent became the government's witness at trial and Lipkis

argued that the agent's testimony should have been excluded

because it was tainted by the agent's exposure to the compelled

statements. We held that because the defendant's immunized

non-immunized statements, the government had met its burden of

proving that all the evidence introduced at trial was derived from

a legitimate source that was wholly independent of the

immunized statements. Id. at 1449-51.

Similarly, in Rogers, a government witness had attended a

proceeding in which the defendant testified under a grant of

immunity. On appeal, we held that the witness's testimony was

permitted because it was clear that it was based on information

11 The government expresses some concern about applying cases that analyze

federal use immunity statutes in the Garrity context. However, in Kastigar , the

leading Supreme Court case regarding use immunity granted pursuant to 18

U.S.C. § 6002, the Court upheld the constitutionality of the federal immunity

statute because it concluded that the statute provided immunity that was

coextensive with the Fifth Amendment protections. 406 U.S. at 463, 92 S. Ct.

ai 1666. Because the use of compelled testimony in the Garrity context also

directly implicates the individual's Fifth Amendment right against self

incrimination, Kastigar's discussion of the scope of the Fifth Amendment

privilege against self-incrimination is directly relevant in the Garrity context.

17a

the witness learned on his own rather than on the immunized

testimony. Rogers, 722 F.2d at 560.

The standard applied in our circuit is taken directly from the

language of Kastigar, which provides:

Once a defendant demonstrates that he has testified,

under a. . . grant of immunity, to matters related [to

the current prosecution], the federal authorities have

the burden of showing that their evidence is not tainted

by establishing that they had an independent, legitimate

source for the disputed evidence.

This burden of proof . . . is not limited to a negation of

taint; rather, it imposes on the prosecution the

affirmative duty to prove that the evidence it proposes

to use is derived from a legitimate source wholly

independent of the compelled testimony.

406 U.S. at 460, 92 S.Ct. 1665 (internal citations omitted)

(quoting in part Murphy v. Waterfront Comm'n, 378 U.S. 52, 79

n.18, 84 S.Ct. 1594, 1609 n.18, 12 L.Ed.2d 678 (1964)). Thus,

under Kastigar and this circuit's precedent, the prosecution

meets its Fifth Amendment burden of proving that compelled

testimony is not used against a defendant when it produces a

legitimate, wholly independent source for all matters as to which

the witness will testify.

Appellants contend that we should reject the holding of

Rogers and Lipkis and instead adopc the standard recently

articulated by the District of Columbia Circuit in United States

v. North ("North I"), 910 F.2d 843, modified, (“North II"), 920

F.2d 940 (D.C. Cir. 1990), cert. denied, 500 U.S. 941, 111

S.Ct. 2235, 114 L.Ed.2d 477 (1991), and United States v.

Poindexter, 951 F.2d 369 (D.C. Cir. 1991), cert. denied,

U.S. __, 113 S.Ct. 656, 121 L.Ed.2d 583 (1992). These

cases, in what is “the most expansive reading of the Fifth

Amendment to date regarding the evidentiary use of immunized

testimony,” United States v. Helmsley, 941 F.2d 71, 92 (2d Cir.

1991}, cert. denied, US. ___, 112 S.Ct. 1162, 117 L.Bd.2d

409 (1992), require the prosecution to make a two part showing

to meet its Kastigar burden. First, as in our circuit, the

18a

prosecutor must prove that there is an independent source for all

matters on which the witness testifies. Poindexter, 951 F.2d at

373. And second, the prosecutor must prove that any witness

exposed to compelled statements has not shaped or altered her

testimony in any way, either directly or indirectly, as a result of

that exposure. Jd., North II, 920 F.2d at 942; North I, 910 F.2d

at 860-63, 872-73. !2

In asking us to apply North and Poindexter, appellants fail

to acknowledge that those cases are not the law of this circuit.

In fact, we have previously rejected contentions similar to

appellants’ that Kastigar requires a greater showing on behalf of

the prosecution. In Lipkis, the prosecution witness had been

exposed to both immunized testimony and to non-immunized

testimony. In affirming the district court, we specifically

rejected the defendant's contention that Kastigar required the

prosecution to prove that the witness's testimony was based on

only the non-immunized statements and not on the identical

immunized statements, recognizing that such a showing was both

impossible and unnecessary. Jd. at 1451.

In sum, it is the law of our circuit that the prosecutor's

Kastigar burden is met if the substance of the exposed witness's

testimony is based on a legitimate source that is independent of

the immunized testimony. Ensuring that the content of a

witness's testimony is based on personal knowledge provides the

required Fifth Amendment protections and meets the Kastigar

12m North I, the D.C. Circuit stated that this burden could be met by

establishing that the witness's allegedly tainted testimony contains no evidence

not “canned” by the prosecution before such exposure occurred. North J, 910

F.2d at 872-73. On rehearing, the court modified the requirement that the

exposed witness's testimony be “canned,” stating that this was only an exampic

of the ways in which the prosecution's burden might be met. North IJ, 920

F.2d at 942-43 (but noting that “it may well be extremely difficuk for the

Prosecutor to sustain its burden of proof” in the absence of canned testimony).

19a

requirement that the defendant's compelled statements shall not

be used against him in subsequent criminal proceedings. !?

1. Briseno's Testimony

Prior to admitting the videotape of Briseno's state trial

testimony, the district court held a Kastigar hearing in which it

13-The standard articulated by the D.C. Circuit to statements that are

compelled in the Garrity context has potentially far-reaching ramifications. As

the North court recognized, federal immunity statutes provide a framework for

& prosecuting attorney or Congress to make a reasoned decision as to whether

the benefits of obtaining compelled testimony justify the obstacles that may be

created in any future prosecutions. The process of formal grants of immunity

also provides time for the prosecutor to protect the testimony of potential

witnesses by obtaining canned statements and by shielding these witnesses from

exposure to the immunized testimony. North II, 920 F.2d at 945-46.

In contrast, immunity attaches in the Garrity context when a threat of the

loss of employment forces a public employee to respond to questioning by

another public employee. In this context, the individuals who question the

employee are concerned about potential misconduct, and their goal is generally

to learn the facts of a situation as quickly as possible. They do not necessarily

act with the care and precision of a prosecutor weighing the benefits of

compelling testimony against the nsks to future prosecutions; indeed, they may

not even have the prospect of prosecution and the requirements of the Fifth

Amendment in mind. In addition, because statements may be compelied soon

after the event in question, it is far more likely that these statements will be

circulated before there is an opportunity to can testimony. Although this may

occur out of a legitimate desire to ascertain the truth of the matter, it may also

occur out of a desire to protect one’s colleagues. Thus, in the context of

internal affairs investigations, police officers could protect cach other by

compelling testimony and disseminating it widely, placing any criminal

Prosecution at serious risk and possibly barring prosecution altogether.

We do not mean to suggest that the showing required under the Pifth

Amendment varies depending on the situation in which the testimony was

compelled. The Fifth Amendment protects defendants from the use of their

compelled statements regardiess of when or where the statements were taken

We merely point out the implications of applying North in the Garrity context.

In light of those implications and because we believe that the standards

enunciated by our circuit comply fully with the requirements of the Fifth

Amendment, we decline to adopt the D.C. Circuit's more protective standard.

20a

assumed that Briseno had read Koon's and Powell's compelled

statements'* and considered whether Briseno's state trial

testimony was tainted by the exposure. The court concluded that

Briseno's testimony was not tainted by the exposure to the

compelled statements. We review this factual finding for clear

error, see Rogers, 722 F.2d at 560, and conclude that it is not

clearly erroneous.

The record reflects a legitimate, independent source of

information with respect to each matter as to which Briseno

testified. Briseno was an eyewitness to the events at issue in the

trial and thus had independent personal knowledge of the events

to which he testified. In addition, other witnesses at the state

trial, including CHP officers Melanie Singer and Timothy Singer

and police officer Solano, testified before Briseno and in his

presence at length about the events surrounding the arrest of

Rodney King. Briseno also saw the Holliday videotape prior to

giving his own testimony. Finally, both Koon and Powell

testified at the state trial before Briseno testified; Briseno was

present in the courtroom on those occasions and heara

appellants’ testimony. At the Kastigar hearing, the government

presented an annotated transcript of Briseno's state testimony,

indicating the independent sources for all of the same

information contained in the compelled statements.

This case is therefore like Lipkis, in which a witness was

exposed to two substantially identical statements, one of which

was immunized and one of which was not. Like the prosecution

in Lipkis, the prosecution in this case successfully established

that Briseno's state trial testimony had a basis in legitimate,

independent sources and therefore was not tainted by any

exposure to Koon's and Powell's compelled statements.

14The parties stipulated that Briseno received appellant's compelled

statements. Pursuant to Skelly v. State Personnel Bd., 15 Cal.3d 194, 124

Cal.Rptr. 14, 539 P.2d 774 (1975), LAPD officers who face disciplinary

proceedings sce provided with a “Skelly package” containing all of the evidence

from interna, investigations of the matter, including the compelled statements of

other LAPD oflicers.

|

2la

2. Conta's Testimony

Appellants also object to the testimony of Mark Conta, the

government's use-of-force expert. At the time of the federal

trial, Conta was the officer in charge of physical training and

self-defense at the Los Angeles Police Academy. At trial he

testified regarding use-of-force policy and gave his opinion that

most of the baton blows inflicted by Powell and Wind during

King's arrest were contrary to LAPD policy. Prior to trial, the

district court held a Kastigar hearing and found that Conta had

not been exposed to the compelled statements. We conclude that

this finding is not clearly erroneous.

Appellants claim that Conta was indirectly exposed to their

compelled statements in two ways. First, they contend that

Conta listened to the testimony of Fred Nichols, the use-of-force

expert the state intended to use at the state trial, at a Kastigar

like hearing during the state trial. At that time, Nichols was

Conta's supervisor and the officer in charge of physical training

and self-defense at the Los Angeles Policy Academy. Although

the state had planned to use Nichols as its use-of-force expert at

the state trial, Nichols was disqualified as a witness after he

testified at the state Kastigar hearing that he was exposed to the

compelled statements and that his testimony would be affected by

this exposure. Appellants contend that because Conta was

present at this hearing at which Nichols testified regarding his

exposure to the compelled statements, Conta also was exposed to

the compelled statements.

Conta's presence at the state hearing, however, did not

22a

make any statement that related to or appeared to relate to the

content of the compelled statements. Conta further testified:

You see, when the Rodney King incident occurred

two years ago today, and we witnessed the TV portions

of the tape and then on March the 8th I watched the

tape in its entirety as I indicated, and I knew at that

time that Sergeant Nichols was probably going to come

forward and represent [sic] the state during the

prosecution process, and I also knew that sergeant

excuse me—Detective Arce and Kwock who were at the

office at this time had requested that Sergeant Nichols

prepare a document.

Sergeant Nichols told me that this document was

confidential and that he was going to render an opinion

that was going to go to the state grand jury. That was

a cue to me, and it was very clear in my mind, that

Sergeant Nichols was on a mission, and it was his

responsibility, and that he was going to go forward and

testify for the prosecution, and he was going to go

forward and prepare this document. And he told me

that he was going to prepare this document and that it

was confidential. Confidential. I wanted to stay away

from him. I felt that it was his thing and that I wanted

to stay away and I didn't want to get into any deep

discussions regarding the Rodney King incident based

on that fact and that information.

RT 3/3/93 at 39. In addition, Conta noted that his testimony at

trial would be based on his twenty-two years of experience as a

police officer, his education as a training officer for nine and a

half years, his training at the Los Angeles Police Academy in the

use-of-force policy and self defense techniques, his review of the

Holliday videotape, the arrest report prepared by Powell, the

sergeant's log prepared by Koon, a use-of-force report, a CHP

supplemental report, and the state trial testimony of Koon,

Powell, and Briseno.

Faced with this evidence, the district court found that Conta

was not exposed to appellants’ compelled statements. We

conclude that this finding is not clearly erroneous.

:

.

;

CG Severance

Appellants challenge the district court's refusal to sever

their trial from codefendant Briseno's. We review a district

court's denial of a motion to sever a trial for an abuse of

discretion. United States v. Vasquez-Valasco, 15 F.3d 833, 844

(9th Cir. 1994); United States v. Cuozzo, 962 F.2d 945, 949 (9th

Cir.), cert. denied, _U.S.__, 113 S. Ct. 475, 121 L.Ed.2d

381 (1992).

Fed.R.Crim.P. 14 governs the severance of defendants or

charges.15 Rule 14 recognizes that even when defendants are

properly joined under Fed.R.Crim.P. 8(b), severance may be

appropriate to avoid prejudice to a defendant. The party seeking

reversal of the denial of a motion to sever bears the burden of

proving such “clear, manifest, or undue prejudice from the joint

trial, that [it] violates one of his substantive rights, so that the

prejudice is of such a magnitude that the defendant was denied a

fair trial." E.g., Vasquez-Valasco, 15 F.3d at 845-46 (internal

quotations omitted).

In this case, appellants argue that the district court should

have severed the trial on the grounds that they and Briseno

presented mutually antagonistic defenses.’ See, e.g., United

15 Rule 14 provides in relevant part:

If it appears that a defendant or the government is prejudiced by #

joinder of offenses or of defendants in an indictment or

information or by such joinder for trial together, the court may

order an election or separate trials of counts, grant a severance of

defendants or provide whatever other relief justice requires.

16 We reject the government's contention that Powell waived his right to

appeal this issue because he failed to renew his motion to sever at the close of

the government's case. Although a defendant gencrally waives a severance

motion by failing to renew it at the close of evidence, “[t}his requirement is not

an inflixible one; waiver may be absent when the motion accompanies the

introduction of evidence deemed prejudicial and a renewal at the close of all

evidence would constitute an unnecessary formality.” United States v. Felix-

Gutierrez, 940 F.2d 1200, 1208 (9th Cir. 1991), cert. denied, _—s—U'S..

113 S.Ct. 2332, 124 L.Bd.2d 244 (1993) (internal quotations omitted).

[Footnote continued on next page]

24a

States v. Tootick, 952 F.2d 1078, 1083-86 (th Cir. 1991);

United States v. Rucker, 915 F.2d 1511, 1513 (11th Cir. 1990).

Appellants’ argument is without merit.

The fundamental flaw in appellants’ claim is that Briseno

did not raise an inconsistent defense in the federal trial; in fact,

the only independent defense he raised was to offer into evidence

the boot he wore on the night in question. Thus, no antagonistic

defenses were raised in the federal trial.

In fact, Appellants’ argument rests on the fact that their

defense strategy in the state trial differed from that of Briseno:

while appellants’ defense was that no excessive force was used,

Briseno's defense was that his fellow officers used excessive

force which he tried to prevent. Admission of the videotape of

Briseno's state trial testimony did not constitute grounds for

severance, however, because the majority of statements on the

videotape were admitted into evidence to rebut assertions made

by Koon and Powell, see Fed.R.Evid. 804(b)(1); Zafiro v.

United States, __:;U.S. __, ___ 113 S.Ct. 933, 938, 122

L.Ed.2d 317 (1993), and therefore would have been admitted

even if Briseno had not been a codefendant in the federal trial.

Moreover, the evidence from the videotape which was admitted

solely against Briseno was not unduly prejudicial to appellants.

That evidence consisted primarily of Briseno's testimony in the

state trial that, after the use of force, he was upset about the use

[Footnote continued from previous page]

motion.” Vasquez-Velasco, 15 F.3d at 845 & n.9 (internal quotations omitted).

In this case, Powell diligently pursued the motion; he moved to sever the trial

prior to trial and renewed his motion immediately prior to the admission of the

evidence deemed prejudicial—the recorded trial testimony of Briseno. Id. at

845. Moreover, the district court had previously denied the defendants’

motions for severance on two occasions, indicating that a renewal of the

motion after the government's rebuttal would have been an unnecessary

formality. See Cuozzo, 962 F.2d at 949, n.5; United States v. Kaplan, 554

F.2d 958, 966 (9th Cir.), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54

L.Ed.2d 315 (1977).

25a

of force and returned to the policy station to report the incident.

Briseno testified that while he was at the station he noticed a

message from Koon over the Mobile Digital Terminal which he

interpreted as a report of the incident, and he decided that he did

not need to file a report because Koon had already reported the

incident. This testimony was neither mutually antagonistic to

appellants’ defense nor was it unduly prejudicial.

Even if we were to assume that the videotape was admitted

only because Briseno was a codefendant, Briseno's state trial

defense and appellants’ federal defense were not irreconcilable.

Although we have recognized that “mutually antagonistic” or

"irreconcilable" defenses may be so prejudicial as to require

severance, severance based on these grounds is appropriate only

when “the acceptance of one party's defense will preclude the

acquittal of the other party.... [TJhe essence or core of the

defenses must be in conflict such that the jury, in order to

believe the core of one defense, must necessarily disbelieve the

core of the other." United States v. Sherlock, 962 F.2d 1349,

1362-63 (9th Cir.) (internal citations and quotations omitted),

cert. denied, __ U.S. __, 113 S.Ct. 419, 121 L.Ed.2d 342

(1992). In this case, the Briseno tape and appellants’ defense

were not mutually exclusive because a jury could find that

Briseno thought the force was excessive while also finding that

the force was not in fact excessive. See, e.g., United States v.

Arias-Villanueva, 998 F.2d 1491, 1506-07 (9th Cir.), cert.

__ U.S. __, 114 S.Ct. 359, 126 L.Ed.2d 322 (1993).

Alternatively, a jury could believe Briseno's testimony that the

use of force was excessive but also acquit all of the officers on

the grounds that it was not willful.

Appellants also suggest that their defenses were mutually

antagonistic because they have taken adversarial positions to

Briseno in Rodney King's subsequent civil suit. Appellants do

explain how such a factor is in any way relevant to the

to sever in the criminal

We therefore conclude that because no mutually

defenses were presented by Briseno and

:

26a

appellants, the district court did not abuse its discretion in

refusing to sever the trial.!7 |

D. District Court's Failure to Disqualify Powell's

Counsel

Koon contends that the district court erred by failing to

disqualify Powell's attorney before trial. Most of the relevant

facts are not disputed. Shortly after the Rodney King incident,

the Los Angeles Police Protective League appointed Michael

Stone, its General Counsel, to represent Powell. Darryl

Mounger was appointed to represent Koon. Stone also

represented Powell in the federal civil case related to this case.

Mounger, however, declined to represent Koon in the civil case.

In an effort to assist Koon, Stone contacted Thomas Feeley, a

civil rights defense lawyer. Feeley agreed to represent Koon in

the civil case.

While the state criminal action and the federal civil action

were pending, Stone and Feeley joined their practices. They

obtained written waivers of conflict from their clients before

forming the new firm. After the firm was formed, oral waivers

were taken on the record in the state criminal proceeding.

Eleven months after the waiver in state court, and three

months before the federal criminal trial was to begin, Koon

revoked his waiver and requested that the district court grant

whatever relief it deemed appropriate under Wheat v. United

States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988).

Koon explained that intervening events had led him to believe

that a conflict existed. The most important of these events

stemmed from the formation of the partnership between Feeley

and Stone: Koon feared that Stone might gain access to

17 Bven in cases in which defendants do raise mutually antagonistic defenses,

there is no per se rule requiring severance. See Zafiro, _U.S.at__, 113

S.Ct. at 938 (stating that "Rule 14 does not require severance even if prejudice

is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the

district court's sound discretion”).

27a

confidential information possessed by Feeley, and might use it to

Koon's disadvantage in the criminal trial.

The district court's solution was to disqualify Feeley from

representing Koon in the civil trial, but to allow Stone to

continue to represent Powell in the criminal trial. We review

that decision for abuse of discretion. See United States v. Baker,

10 F.3d 1374, 1399 (9th Cir. 1993).

1. The Stone & Feeley Partnership

As the district court explained, the conflict asserted here

more closely resembles “successive representation" than “dual

representation.” The problem Koon complains of is not that his

attorney in the criminal case was unable to be completely loyal

to him, but rather that confidences which he had divulged to an

attorney in another case might be used against him in the

The leading case on successive representation in this circuit

is Trone v. Smith, 621 F.2d 994 (9th Cir. 1980), in which we

restated the rule that an attorney must be disqualified if he or she

formerly represented an adverse party in a matter “substantially

related" to the current representation. Jd. at 998 (citing Gas-A-

Tron of Arizona v. Union Oil Co. of California, 534 F.2d 1322,

1325 (9th Cir.), cert. denied, 429 U.S. 861, 97 S.Ct. 164, 50

L.Ed.2d (1976)). Substantial relationship may be presumed

where there is a “reasonable probability that confidences were

disclosed which could be used against the client in later, adverse

representation.” Jd. at 998. But even if there is no sharing of

confidences, “[t]he substantial relationship between the two

representations is itself sufficient to disqualify." Id. at 999.

Attorney conflict may require a court to disqualify counsel

despite the fact that the rights of a party may be compromised by

that disqualification. While a trial judge “must recognize a

presumption in favor of [defendant's] counsel of choice ... that

E

7

7

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28a

against the potential for conflict asserted by Koon. See United

States v. Wheat, 813 F.2d 1399, 1402 (9th Cir. 1987), aff'd, 486

U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); United

States v. Cunningham, 672 F.2d 1064, 1070 (2d Cir. 1982).

The district court recognized that Powell's interest in

retaining Stone was strong. Stone had represented Powell at the

state criminal trial, had obtained good results for him there, and

was familiar with the case.

The district court found that Koon's interests, by contrast,

were weak. The court noted that at the time Feeley and Stone

joined their practices, their firm adopted screening procedures

designed to ensure that confidential information Koon had

imparted to Feeley would not be disclosed to Stone. There was

also evidence that Stone had never discussed confidential

information about Koon with Feeley, did not have access to

Feeley's files, and had never met with Koon outside the presence

of one of Koon's criminal attorneys.

This circuit has not yet decided whether such screening

procedures, or such evidence, may rebut the presumption that

lawyers in the same law firm share information. See Trone, 621

F.2d at 999 n.4; Paul E. Iacono Structural Eng'r, Inc. v.

Humphrey, 722 F.2d 435, 442 (9th Cir. 1983). We need not

resolve that issue here. On appeal, we have the advantage of

hindsight. Allowing Stone to continue as Powell's attorney

worked no disadvantage to Koon: Koon points to nothing in the

course of trial which even suggests that Stone behaved adversely

to him on the basis of confidential information, or, indeed, that

Stone behaved adversely to him at all.

This court has cautioned that where a criminal defendant's

right to the counsel of his choice is at loggerheads with the need

for conflict-free counsel, “[rjeviewing courts should be

especially wary of complaints of error," because trial courts are

placed “in a position to be whipsawed in the expectation of a

guaranteed error no matter which way the courts rule." Wheat,

813 F.2d at 1402. Here, where Koon can point to no ill

consequence flowing from the district court's elevation of

Powell's right to the counsel of his choice over Koon's right to

avert a possible breach of confidentiality, we cannot say that the

:

\

29a

district court abused its discretion when it found that Koon had

shown neither an actual conflict nor a serious potential for

conflict. As subsequent events have made clear, the district

court accurately assessed the possibilities. 1*

2. Other Allegations of Conflict

Koon also argues that a conflict was evidenced by the

following facts: (1) Stone returned to the government a

memorandum the government had inadvertently disclosed, and

did so without showing the memorandum to Koon; (2) Powell's

position on certain evidentiary issues was contrary to Koon's;

(3) Powell's sister worked as a secretary in Stone's law office;

and (4) Stone had announced during the state court proceedings

that an expert might not be able to testify because of an attorney-

client relationship with Stone.

The district court found that none of these facts established

a conflict: (1) Stone acted properly by returning the government

memorandum; (2) Powell's and Koon's positions on evidentiary

issues were not necessarily inconsistent; (3) no showing had

been made that Powell's sister had access to any material

pertaining to Koon; and (4) Koon's fear that potential expert

witnesses in this case would decline to testify based on previous

18 We recognize that the district court also had an obligation to ensure that the

proceedings appeared to be fair. See Wheat, 486 U.S. at 160, 108 S.Ct. at

1698. For this reason, it might be argued that rules relating to conflict must be

applied prophylactically, and that we must review this case without benefit of

hindsight. If we were to constrain ourselves to such an application, the result

would be no different. Even at the time the district court ruled on the matter,

Koon had shown little more than the appearance of a conflict. We have

expressed “grave doubts" as to whether mere appearances would ever be

enough to deprive a criminal defendant of the right to counsel of his choice,

United States v. Washington, 797 F.2d 1461, 1466 (9th Cir. 1986), and we

note that the test formulated in Wheat itself directs courts to look for a “serious

potential for conflict," rather than the mere appearance of conflict. 486 U.S. at

164, 108 S.Ct. at 1700. Here, where Powell had a strong Sixth Amendment

Tight in retaining Stone as his attorncy, we conclude that the district court did

not abuse its discretion in protecting that right rather than removing what can

only be characterized as the possible appearance of a highly attenuated conflict.

30a

contacts with Stone was speculative, and his fear that Stone

might place future business advantage ahead of the welfare of

defendants was unsupported by evidence.

On appeal, Koon presents nothing to refute these findings.

We therefore conclude that the district court did not abuse its

discretion by declining to disqualify Powell's attorney.

E. Double Jeopardy Claim

Appellants challenge the district court's refusal to grant

them a hearing on their claim of double jeopardy. Prior to trial,

appellants requested an evidentiary hearing to determine if there

was sufficient collusion between federal authorities and the state

authorities to preclude the federal prosecution under Bartkus v.

Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959).

We review the court's denial of this motion for an abuse of

discretion. United States v. Russotti, 717 F.2d 27, 31 (2d Cir.

1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1273, 79 L.Ed.2d

678 (1984).

The Double Jeopardy Clause of the Fifth Amendment

provides “nor shall any person be subject for the same offense to

be twice put in jeopardy of life or limb." Nevertheless, under

the doctrine of dual sovereignty, successive prosecutions based

on the same underlying conduct do not violate the Fifth

Amendment's Double Jeopardy Clause if the prosecutions are

brought by separate sovereigns. Heath v. Alabama, 474 U.S.

82, 93, 106 S.Ct. 433, 440, 88 L.Ed.2d 387 (1985); United

States v. Guy, 903 F.2d 1240, 1242 (9th Cir. 1990).

Our circuit has recognized a narrow exception to this

general rule: "[i]f the second prosecution, otherwise permissible

under the dual sovereignty rule, is not pursued to vindicate the

separate interests of the second sovereign, but is merely pursued

as a sham on behalf of the sovereign first to prosecute, it may be

subject to a successful double jeopardy challenge.” Guy, 903

F.2d at 1242; see also United States v. Figueroa-Soto, 938 F.2d

1015, 1018-19 (9th Cir. 1991), cert. denied, _ U.S. __, 112

S.Ct. 1181, 117 L.Ed.2d 424 (1992). This exception is referred

to as the “Bartkus exception" in reference to the Supreme Court

3la

case from which it was derived. See Bartkus v. Illinois, 359

U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959).

To establish double jeopardy, it is not sufficient for the

defendant to show that there was cooperation between federal

and state authorities; rather, the defendant must prove that the

subsequent prosecuting entity is a “tool” for the first, or the

is a “sham,” done at the behest of the prior authority.

Figueroa-Soto, 938 F.2d at 1019; Guy, 903 F.2d at 1242-43;

United States v. Bernhardt, 831 F.2d 181, 182 (9th Cir.

1987).19 In this case, appellants ask us to remand this case for

an evidentiary hearing to determine whether the federal

government's prosecution was the product of state and federal

collusion extensive enough to amount to a second prosecution by

the state. Although we have never articulated what a defendant

must show to obtain an evidentiary hearing, we have stated that

he must make more than “conclusory allegations” of collusion.

Russotti, 717 F.2d at 31.

Appellants point to several factors which, they coutend,

warrant a hearing in this case: (1) the federal investigation

began when the crime occurred and remained active during the

State investigation and prosecution; (2) federal and state

authorities cooperated with each other, and the state delivered

evidence and investigative reports to federal authorities after the

19 The Bartkus exception is narrow, and seldom successfully pursued E.g.,

United States v. Paiz, 905 F.2d 1014, 1024 (7th Cir. 1990) (compiling list of

cases), cert. denied, 499 U.S. 924, 111 S.Ct. 1319, 113 L.Bd.2d 252 (1991).

Our decision in Figueroa-Soto demonstrates the narrowness of the excephon

938 F.2d 1015. In Figueroa-Soto, we concluded that the Bartkus exception did

not apply, even though the state prosecuted af the request of federal authonbes.

federal agents assisted the state prosecution, sat at the state prosecutor's table.

and testified as witnesses; evidence collected by federal authorities was given

to state authorities for use in the state trial; the sentence of one prosecubon

witness was postponed until he had testified at the state trial; a federal

forfeiture proceeding was delayed so as not to prejudice the state prosecution,

FBI agents prepared state trial witnesses; and the state prosecutor was

appointed as special assistam to the U.S. Attorney and paid by the state for the

subsequent federal prosecution. id. at 1018-19.

32a

state prosecution; (3) witnesses who testified in the federal trial

were interviewed by the federal authorities soon after the

incident; and (4) the Briseno videotape was admitted into

evidence in the federal trial.

its own investigation weakens appellants’ argument, as it

indicates that the federal government was not a “tool” of the

state authorities. See Guy, 903 F.2d at 1243. Moreover, the

fact that evidence developed from the state trial was used in the

federal trial does not create a double jeopardy problem. C7.

Figueroa-Soto, 938 F.2d at 1018-19 (evidence collected by

federal authorities given to state authorities for state

prosecution).

In sum, there is no evidence that the federal prosecution

was a “sham” or a “cover” for the state prosecution. Cf

Bernhardt, 831 F.2d at 181-83 (remanding for further factual

finding where defendant showed that state prosecutor, who could

not prosecute defendant due to statute of limitations, enlisted

U.S. Attorney in prosecution with the understanding that the

state prosecutor would be the lead attorney in the federal case

and would be paid by the state); see also Paiz, 905 F.2d at 1025

no.14 (no hearing required where defense showed that federal

agent was involved in state investigation and arrest and that state

prosecutor was designated a U.S. attorney for the federal

prosecution). The district court did not abuse its discretion in

denying appellants’ motions for an evidentiary hearing.

F. Denial of Appellants’ Peremptory Challenges

Appellants claim that the district court denied them the right

to exercise peremptory challenges against two black jurors.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90

L.Ed.2d 69 (1986), the Supreme Court held that the

discriminatory exercise of peremptory challenges violates the

equal protection clause. Batson's holding has been extended to

peremptory challenges exercised by criminal defendants.

-_—

33a

Georgia v. McCollum, ___:‘U.S. __, 112 S.Ct. 2348, 120

L.Ed.2d 33 (1992); United States v. DeGross, 960 F.2d 1433,

1339-42 (9th Cir. 1992) (em banc). Under Batson, the

prosecution first must make out a prima facie case of racial

discrimination; to rebut, the defense must then articulate a race-

neutral explanation for the challenge. McCollum, __U-S. at

__, 112 S.Ct. at 2359.29 We review the district court's factual

findings for clear error. DeGross, 960 F.2d at 1442.

1. Juror No. 263

Juror No. 263, a black man, provided the following

answers on a questionnaire he filled out before voir dire:

98. (a) How would you describe the media coverage

of the underlying incident between the police officers

and Rodney King?

» & Fair and accurate

Distorted and exaggerated

(b) How would you describe the media coverage

of the previous trial?

» = Fair and accurate

Distorted and exaggerated

109. What was your personal initial reaction to the

verdicts in the state court trial?

My personal reaction was unfair .*'

20On appeal, Koon and Powell raise not a Batson claim but the reverse of

one: They claim that their right to exercise peremptory challenges was

violated because the district court went too far m protecting Batson nghis

asserted by the government. Since the question is what the proper limits of

Batson are, the same analytic framework applics. See Uniled States v. Beniley-

Smith, 2 F.3d 1368, 1373-77 (Sth Cir. 1993).

21 Throughout the voir dire, it was assumed that Juror No. 263 meant that he

feR the verdicts were unfair.

34a

110. Did you feel that justice had been served or

were you disappointed with the verdicts?

“after listening to things” said by others during dire

RT 2/22/93 at 62. He said that his opinion now was that justice

had been served by the Simi Valley verdicts; he was no longer

disappointed in those verdicts. He also stated that although he

thought at the time te Holliday videotape was first aired that

what the defendants had done was wrong, he had now changed

his perception, because through the voir dire he had come to

realize that he “didn't have the whole facts to base an opinion

on." id. at 75.

Juror No. 263 had also written on his questionnaire that

what he remembered about the Rodney King case “was how had

the news people handled a very important trial." Jd. at 61. On

voir dire, he explained that in this answer he had been referring

to the news media's exploitation of the event.

A defense challenge for cause was denied. The defendants

35a

L.Ed.2d 583 (1993) (same); United States v. Bishop, 959 F.2d

820, 824 (9th Cir. 1992) (same).72

The defense furnished two reasons for chalienging Juror

No. 263: the juror’s amswers about press coverage were

inconsistent both within the questionnaire and with his answers

in court; and Juror No. 263 had stated on his questionnaire that

he was disappointed in the Simi Valley verdicts, and found them

unfair. To refute these reasons, the government argued (1) that

Juror No. 263's amswers regarding the press were not

inconsistent, and (2) that Juror No. 263's answers on the

questionnaire regarding the Simi Valley verdicts were

superseded by the more favorable answers he gave on voir dire,

and that the defense had accepted non-minority jurors who had

changed their answers in apparent response to the educative

process of the voir dire. The government also argued that the

defense had engaged in a pattern of exercising peremptory

challenges against minority jurors, and that defense counsel had

questioned minority jurors vigorously, in an attempt to unearth

something which would serve as a basis for disqualification,

while using voir dire with white jurors as an opportunity to

The district court, after hearing argument from all counsel,

stated as follows:

[T}he Court believes and so rules that the government

has made a prima facie showing and that considering

the totality of the circumstances that do pertain, the

explanation for the challenge is insufficient, it does not

meet the test and, therefore, the challenge will not be

allowed.

22 Hernandez and the cases following it dispense with appellants’ argument

that “the trial court unfairly imposed a higher burden on the defense to shift the

burden to the government when it exercised peremptory challenges to white

jurors than it imposed on the government to shift the burden to the defense to

justify its challenges to black jurors.” Br. of Powell at 31. Since the “height”

of the imitial burden is moot at this stage, differing heights for different partics

are of no significance.

36a

RT 2/22/93 at 105. In reviewing this finding, we must consider

“all relevant circumstances,” including any pattern of

peremptory challenges against minority jurors and the questio

and statements made during voir dire. Batson, 476 U.S. at 96-

97, 106 S.Ct. at 1723.

We do not find in the record clear-cut evidence either way.

The defendants’ claim that Juror No. 263's answers about the

press were inconsistent appears weak: media coverage can be

exploitative and accurate ai the same time. The defendants’

stated concerns about Juror No. 263's reaction to the Simi

Valley verdicts appear to stand on firmer ground, but in at least

one instance, the defense accepted without challenge a non-

minority juror who professed to have been shocked by the Simi

Valley verdicts, and who stated that she had anticipated on the

basis of the Holliday video that at least one of the defendants in

the state prosecution would be convicted. The record reveals

that the defense attorneys engaged in far more vigorous

questioning of Juror No. 263 than of the non-minority jurors

who were questioned on the same day, although there are also

suggestions in the record that those jurors may have appeared

desirable to the defense for reasons other than race (e.g.,

positive contacts with or friends in law enforcement). Minority

jurors questioned on previous days were subjected to vigorous

voir dire by defense counsel; several non-minority jurors,

however, were closely questioned as well. After the questioning

on previous days, the defendants collectively or individually

exercised against minority jurors two of the three peremptory

challenges they ultimately used. A third minority juror,

No. 598, initially was not challenged by the defense.

The evidence points in both directions. In such a situation,

we must defer to the district court's factual findings: “'where

there are two permissible views of the evidence, the factfinder's

choice between them cannot be clearly erroneous.'" Hernandez,

500 U.S. at 369, 111 S.Ct. at 1871 (plurality) (quoting Anderson

v. Bessemer City, 470 U.S. 564, 574, 105 §.Ct. 1504, 1511, 84

L.Ed.2d 518 (1985)). We note that in this case the evidence was

bound up at every stage with the need to make determinations of

credibility. As the Supreme Court has explained,

—— ee —

37a

[ijn the typical peremptory challenge inquiry, the

decisive question will be whether counsel's race-neutra!

explanation for a peremptory challenge should be

believed. There will seldom be much evidence bearing

on that issue, and the best evidence often will be the

demeanor of the attorney who exercises the challenge.

As with the state of mind of a juror, evaluation of [that

attorney's] state of mind based on demeanor and

credibility lies “peculiarly within a trial judge's

province.”

Hernandez, 500 U.S. at 365, 111 S.Ct. at 1869 (quoting

Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 854, 83

L.Ed.2d 841 (1985)). Here, the district court's observation of

demeanor was particularly important, since the court had to

assess not only the credibility of the attorneys, but also the

credibility of those jurors who purported to have been reformed

through the educative process of the voir dire. The two

credibility assessments were interrelated: the more convincing

the juror, the less believable the attorney who attempted to

exercise thé challenge.

Determinations as to lawyer credibility were clearly the

crux of the matter in this case. As the Fifth Circuit recently

noted in the context of a McCollum challenge, “the ultimate

inquiry for the judge is not whether counsel's reason is suspect,

or weak, or irrational, but whether counsel is telling the truth in

his or her assertion that the challenge is not race-based.” United

States v. Bentley-Smith, 2 F.3d 1368, 1375 (Sth Cir. 1993).

Recognizing that on this most crucial issue, “[w]e have only a

cold transcript to guide us while the trial judge was there to

observe the jury selection—day in and day out,” Burks v. Borg,

Nos. 83-15263/16546, 1994 WL 280285 at *4 (9th Cir. June 27,

1994), we will not substitute our judgment for that of the district

38a

Koon's attorney that Juror No. 598, a black woman seated on

the jury, had made various disdainful comments to him

regarding defense strategy and the racial composition of the jury.

Koon moved to reopen the voir dire. The court summoned Juror

No. 421.

In court, Juror No. 421 testified that when he had told Juror

No. 598 that he felt she was “good jury material," she responded

that the Simi Valley jury had been all white; that “they” (the

defense attorneys) had managed to get all the blacks kicked off;

and that they would most likely do the same in the federal trial.

Koon renewed his motion to reopen voir dire on the basis

that the statements attributed to Juror No. 598 were inconsistent

with her answers on the questionnaire and on voir dire. Koon

also moved for a mistrial, and all defendants joined. The court

took the motions under submission. The following day, the

court denied the mistrial motions and informed counsel that it

would consider a brief questioning of Juror No. 598.

On February 25, 1993, the court and all counsel met with

Juror No. 598 in chambers, and the court questioned Juror

No. 598 about Juror No. 421's allegations. Juror No. 598

denied them all. The court asked counsel if they had anything

else. Only the government attorney replied, and he said that he

had nothing. The in-chambers conference was adjourned. In

open court, Wind again moved for a mistrial, and Briseno joined

the motion. Koon and Powell did not. The motion was denied.

The trial then commenced, with Juror No. 598 seated on the

jury.

Appellants now argue that the district court erred because

"it denied the defense the ability to exercise a peremptory

challenge." Br. of Appellant Powell at 31. The record does not

support this argument. Rather, the record reveals that Koon and

eo ee, a

39a

Powell simply dropped the issue after the in camera questioning

of Juror No. 598.7%

We therefore review the case for plain error sia

substantial rights. United States v. Olano, |

113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993); United States v.

Sterner, 23 F.3d 250, 251 (9th Cir. 1994). Assuming without

deciding that substantial rights were at issue here, we see no

plain error. When a court is informed that a juror may have

failed to disclose a relevant fact during voir dire, the proper

course of action, once the jury has been sworn, is for the court

to question the juror and excuse her if necessary, not to reopen

the whole jury selection process. See United States v. Berryhill,

880 F.2d 275, 279 (10th Cir. 1989) (affirming conviction over

defendant's contention that he was denied his right to exercise

peremptory challenges, where information about jurors which

should have been disclosed on voir dire was disclosed after first

day of trial, and where district court questioned jurors,

discharged one of the two, and seated an alternate), cert. denied,

493 U.S. 1049, 110 S.Ct. 853, 107 L.Ed.2d 846 (1990). The

district court followed the procedure which has been endorsed by

this court in cases of juror bias or misconduct, carefully

questioning both the juror whose impartiality had been attacked

and other relevant witnesses, and inviting counsel to do the

same. See United States v. Armstrong, 909 F.2d 1238, 1244

(9th Cir.), cert. denied, 498 U.S. 870, 111 S.Ct. 191, 112

L.Ed.2d 153 (1990); United States v. Sears, 663 F.2d 896, 899-

900 (9th Cir. 1981), cert. denied, 455 U.S. 1027, 102 S.Ct.

1731, 72 L.Ed.2d 148 (1982). The district court found that

Juror No. 598 was not biased, and nothing in the record

establishes that that finding was clearly erroneous. We find no

error here, let alone the plain error which warrants reversal

where a claim has been abandoned below.

23 Koon and Powell did not join in Wind's post in camera mistrial motion,

although on other occasions when the same issue was raised, Koon and Powell

jointed. RT 2/23/94 at 113.

G. Prosecutorial Misconduct

Appellants argue that several statements made by the

prosecution during its rebuttal closing argument were improper

and prejudicial. Because appellants did not make a

contemporaneous objection to any comments they now challenge,

we review their claims for plain error. United States v. Young,

470 U.S. 1, 16, 105 §.Ct. 1038, 1046-47, 84 L.Ed.2d 1 (1985).

"A plain error is a highly prejudicial error affecting substantial

rights." United States v. Dischner, 974 F.2d 1502, 1515 (9th

Cir. 1992) (internal quotations omitted), cert. denied, _ U.S.

- __, 113 S.Ct. 1290, 122 L.Ed.2d 682 (1993).

Prosecutors may not make comments calculated to arouse

the passions or the prejudices of the jury. Viereck v. United

States, 318 U.S. 236, 247-48, 63 S.Ct. 561, 566, 87 L.Ed. 734

(1943); Commonwealth of Northern Mariana Islands v.

Mendiola, 976 F.2d 475, 486-87 (9th Cir. 1992). As the D.C.

Circuit has stated:

A prosecutor may not urge jurors to convict a criminal

defendant in order to protect community values,

preserve civil order, or deter future lawbreaking. The

evil lurking in such prosecutorial appeals is that the

defendant will be convicted for reasons wholly

irrelevant to his own guilt or innocence. Jurors may be

persuaded by such appeals to believe that, by

convicting a defendant, they will assist in the solution

of some pressing social problem. The amelioration of

society's woes is far too heavy a burden for the

individual criminal defendant to bear.

United States v. Monaghan, 741 F.2d 1434, 1441 (D.C. Cir.

1984) (internal citations omitted), cert. denied, 470 U.S. 1085,

105 §.Ct. 1847, 85 L.Ed.2d 146 (1985); see also Northern

Mariana Islands, 976 F.2d at 486-87; United States v. Solivan,

937 F.2d 1146, 1150-55 (6th Cir. 1991).

While recognizing that prosecutors may not appeal to the

passions of the jury, in analyzing the effect of a comment upon

the jury we accord due respect to the common sense of jurors.

The Supreme Court has stated that

re ee er oe ee

ee ee

ee

’

4la

[iJsolated passages of a prosecutor's argument, billed in

advance to the jury as a matter of opinion not of

evidence, do not reach the same proportions [as “[t}he

‘consistent and repeated misrepresentation' of a

dramatic exhibit in evidence"). . . . [A] court should

not lightly infer that a prosecutor intends an ambiguous

remark to have its most damaging meaning or that a

jury, sitting through a lengthy exhortation, will draw

that meaning from the plethora of less damaging

interpretations.

Donnelly v. DeChristoforo, 416 U.S. 637, 646-47, 94 S.Ct.

1868, 1873, 40 L.Ed.2d 431 (1974) (quoting Miller v. Pate, 386

U.S. 1, 6, 87 S.Ct. 785, 787, 17 L.Ed.2d 690 (1967)).

Appellants challenge several remarks made by the

prosecution in its rebuttal closing argument. We examine each

comment in turn.

Appellants first challenge statements telling the jury that

they are “the conscience of the community."24 An appeal to the

jury to be the conscience of the community is not impermissible

unless it is “specifically designed to inflame the jury.” United

—

24 Counsel stated:

Judge Davies will give you your break, and then he'll instruct

you in the law, and you will walk into the jury room to

deliberate, and you will leave this courtroom, and convinced and

confident with the truth, and you will leave with your collective

good common sense, because ladies and gentlemen of the jury,

you're the conscience of the community. You decide what

conduct is acceptable by your police. And what conduct violates

the law. Defendant Koon and the other defendants beat a man

who was not combative, who was not an aggressor until he

begged for mercy, knowing it was wrong. .. . There are some

countries where people can be beaten by the police until they beg

the police to stop, but not in this country. Not now, not 200 years

ago when this Constitution was written, and with your decision,

Rot ever.

RT 4/10/93 at 107-08 (emphasis added).

42a

States v. Williams, 989 F.2d 1061, 1072 (9th Cir. 1993)

(internal quotations omitted); United States v. Lester, 749 F.2d

1288, 1301 (9th Cir. 1984). In this case, when the prosecutor's

statement is considered in context, it is clear that it was not

designed to inflame the jury, but rather to explain to jurors that

they were in the position to determine whether the charged

conduct comported with community standards of reasonableness.

The reference was not accompanied by any suggestion of the

consequences of a particular verdict, nor did the prosecutor

suggest to the jury that it had a direct stake in the outcome of the

case. See United States v. Kopituk, 690 F.2d 1289, 1342-43

(11th Cir. 1982), cert. denied, 463 U.S. 1209, 103 S.Ct. 35-42,

77 L.Ed.2d 1391 (1983). The comment did not cross the line

"demarcating permissible oratorical flourish from impermissible

comment calculated to incite the jury against the accused.”

Lester, 749 F.2d at 1301 (quotations omitted).

Appellants also challenge the prosecutor's statement that the

jury would have to decide what conduct is “acceptable by your

police” and what conduct “violates the law." They contend that

this statement suggested that the jury was obligated to decide

more than just this case. We disagree. In order to decide

whether appellants used unreasonable force, the jury was

required to decide whether appellants’ actions were acceptable or

whether those actions violated the law. These comments did not

place upon the jurors the burden of maintaining social order.

They were not improper.

Appellants next challenge the prosecutor's reference to the

Constitution, and contend that the prosecutor told the jury that

the survival of the Constitution rested on their verdict. Again,

we believe this ascribes an unreasonable meaning to the

prosecutor's statements. A jury would interpret the

prosecution's references the Constitution to assert that it is their

job to interpret and apply the Constitution, and not as a

statement that the Constitution will collapse if there were an

acquittal. Donnelly, 416 U.S. at 647, 94 S.Ct. at 1873. The

reference was within the bounds of advocacy permitted to the

prosecutor.

’

;

:

43a

Appellants also argue that the prosecutor invited jurors to

convict appellants in order to influence the manner in which

police officers are trained to use force. During closing

argument, government counsel posed the rhetorical question:

But the real question here is a little different. Knowing

what you know about Sergeant Conta and about

Sergeant Duke, which of those two officers would you

want teaching recruits how much force can be used

against the citizens of this community? That's the real

question, and you know the answer.

RT 4/10/93 at 75.

We do not understand this comment to invite jurors to

convict defendants in order to influence the manner in which

police are trained. Donnelly, 416 U.S. at 647, 94 S.Ct. at 1873.

The remark was made in response to defense closing arguments,

in which counsel compared the testimony of Conta, the

government use-of-force expert, and Duke, the defense use-of-

force expert. Defense counsel had asked the jurors to consider

which officer—Conta or Duke—they would prefer to call in the

middle of the night when they needed help, and suggested that

the jurors would prefer Duke. In the government's rebuttal,

counsel compared the testimonies of Duke and Conta, and then

made the challenged comment. In this context, a jury would

understand the prosecutor's comments as a challenge to Duke's

opinion regarding what is reasonable and unreasonable in the use

of force. The comment was not improper.

The final comment to which appellants object is troubling.

During the trial, the government had emphasized that appellants

failed to write in their police reports that King was on the

ground when most of the force was used, and argued that this

Omission occurred because appellants knew that the use of force

was unreasonable. In response, defense counsel suggested that

people often make mistakes about what they see and suggested

that when the jury first saw the video, they noticed different

things. On rebuttal, government counsel responded:

Now, how does Mr. Stone explain the lies and

omissions? Well, he tells you that everyone sees things

differently... .

When the video was played people may have

noticed different details about what was occurring in he

video, but there was one thing that everyone from Paris

to Tokyo noticed, one thing that everyone saw. There

was one thing that caused horror and outrage

throughout this world. There was one thing that

neither you nor anyone else missed when they saw that

video tape. And the thing that everybody saw, that

everybody was so outraged about was that the

defendants were beating a man who was on the ground.

That's why there was such outrage. That's why there

was such uproar.

RT 4/10/93 at 81-82.

These remarks regarding the “horror and outrage” evoked

from "Paris to Tokyo” by the Holliday video went beyond the

bounds of appropriate advocacy and were improper. In this

case, the worldwide broadcast of the Holliday videotape and the

acquittal of appellants by the Simi Valley jury sparked

widespread rioting and general public outrage of which the

jurors could not help but be aware. In this context, the

prosecutor's references to public outrage could easily incite the

passions, fears, and prejudices of the jurors, remind them of the

social ramifications of their verdict, and persuade them to

convict the defendants for reasons irrelevant to appellants’ guilt.

Even when a remark is improper, however, we can reverse

only when the statement substantially prejudices a defendant's

trial. E.g., Territory of Guam v. Quichocho, 973 F.2d 723, 727

(9th Cir. 1992), cert. denied, __ U.S. ___, 113 S.Ct. 1014,

122 L.Ed.2d 162 (1993); Lester, 749 F.2d at 1301. While we

certainly do not condone the government's behavior, we also

cannot find that it constitutes plain error. We rely on several

factors to reach this conclusion.

First, appellants have drawn a few sentences from a trial

that lasted over a month and from detailed closing arguments

45a

that lasted many hours. The remarks were not part of a series of

improper comments by the prosecutor, but were in fact made in

response to defense arguments: in using the phrase “Paris to

Tokyo,” government counsel merely was repeating a term

previously used by defense counsel to attack King's credibility.

See Monaghan, 741 F.2d at 1443 & n.42. The misconduct by

the prosecution was partially invited, isolated, and of limited

severity. See Williams, 989 F.2d at 1072; Monaghan, 741 F.2d

at 1443.

Second, government counsel, defense counsel, and the

district court all admonished the jurors to base their verdict only

on the evidence before them, and to ignore what they knew

about the first trial or what the possible ramifications of any

verdict might be. The court also instructed the jurors to rely

only on the evidence introduced at trial, and reminded them that

oral argument is not evidence. Such instructions dilute the

potential prejudice arising from improper statements. E£.¢.,

Williams, 989 F.2d at 1072; Lester, 747 F.2d at 1301; United

States v. Flake, 746 F.2d 535, 542 (9th Cir. 1984), cert. denied,

469 U.S. 1225, 105 §.Ct. 1220, 84 L.Ed.2d 360 (1985).

Third, unlike cases in which there is little evidence on

which the jurors could base a conviction, in this case there was

substantial independent evidence to support a finding of guilt.

See United States v. Modica, 663 F.2d 1173, 1182 (2d Cir.

1981), cert. denied, 456 U.S. 989, 102 §.Ct. 2269, 73 L.Ed.2d

1284 (1982). Finally, the verdicts acquitting two police officers

and finding two guilty is indicative of the jury's ability to weigh

the evidence without prejudice. Monaghan, 741 F.2d at 1443

n.45.

In light of these factors, we conclude that the jury's ability

to weigh the evidence impartially was not materially affected by

the prosecutor's improper remarks. Cf Williams, 989 F.2d at

1072; United States v. Polizzi, 801 F.2d 1543, 1558 (9th Cir.

the district court instructed the

jury that the government had the burden of proving beyond a

reasonable doubt, inter alia, (1) that the conduct of the

defendants deprived King of a right secured by the Constitution

or other federal law; and (2) that the defendants acted willfully.

In the indictment, Powell, Briseno, and Wind were charged

with depriving King of the right to be free from unreasonable

force in the course of an arrest. Koon was charged separately

under Count 2 with depriving King of “the right preserved and

protected by the Constitution of the United States not to be

deprived of liberty without due process of law, including the

right to be kept free from harm while in official custody.”

Consequently, with respect to deprivation of rights, the jury was

given separate instructions as to Koon.

Koon contends that the instructions relating to deprivation

of rights in his case were erroneous. Both Koon and Powell

contend that the district court's instructions on willfulness were

erroneous.

1. Deprivation of Rights by Koon

The district court instructed the jury as follows:

Count 2 charges that Defendant Koon did willfully

commit other officers to unlawfully assault Rodney

King, who was then in the custody of those officers.

The Fourteenth Amendment right to be kept free

from the deprivation of liberty without due process of

law includes the right to be kept free from an

unreasonable use of force while in official custody. A

police officer, having a right to arrest a person who has

committed a crime, has an equal duty to protect that

person from unreasonable assault or injury from any

source while that person is in official custody. In other

words, a police officer has a duty to insure that persons

in official custody are not unreasonably assaulted by

others, including police officers.

A person is in official custody if, in light of all

circumstances surrounding the incident, a reasonable

person in that situation would have believed he or she

was not free to leave.

47a

RT 4/10/93 (Gury Instructions) at 15-16. The court then defined

unreasonable force, concluding that “[t}he question is whether

the totality of the circumstances justifies the force used during

the arrest." Jd. This is the test used to determine whether the

force used in the course of an arrest is unreasonable in violation

of the Fourth Amendment. Graham v. Connor, 490 U.S. 386,

395-97, 109 S.Ct. 1865, 1871-72, 104 L.Ed.2d 443 (1989).

Koon argues on appeal that the district court erred by

drawing the definitions of both unlawful force and custody from

the context of Fourth Amendment law, when the indictment

charged him with depriving King of Fourteenth Amendment

rights. According to Koon, the Fourteenth Amendment

standard, which should have been applied in his case, affords

greater protection to civil rights defendants, since under this

standard, force is unlawful only if it is “shocking to the

conscience” or “intended as punishment,” rather than merely if it

is “objectively unreasonable.“ Koon relies heavily on United

States v. Cobb, 905 F.2d 784 (4th Cir. 1990), cert. denied, 498

U.S. 1049, 111 S.Ct. 758, 112 L.Ed.2d 778 (1991), a criminal

prosecution brought under 18 U.S.C. § 242, in which the Fourth

Circuit held that the district court had erred by giving a Graham-

type excessive force instruction where the victim was a pretrial

elements of a statutory crime. United States v. Reese, 2 F.3d

870, 883 (9th Cir. 1993), cert. denied, US. ___, 1148.Ct.

928, 127 L.Ed.2d 220 (1994).

We conclude that the district court stated the law correctly.

subject to criminal liability. United States v. Reese, 2 F.3d at

887-90 (officials charged with violating victim's right to be kept

free from harm while in custody); United States v. McKenzie,

768 F.2d 602, 604 (Sth Cir. 1985) (same), cert. denied, 474

U.S. 1086, 106 S.Ct. 861, 88 L.Ed.2d 900 (1986); United

States v. Lynch, 189 F.2d 476, 478 (Sth Cir.) (officials charged

with violating victims’ right “not to be subjected to cruel and

inhuman treatment or punishment while in custody, control, or

under arrest"), cert. denied, 342 U.S. 831, 72 S.Ct. 50, 96

L.Ed. 629 (1951).

The right of the custodial subject to be protected from harm

is firmly rooted in substantive due process jurisprudence: “when

the State takes a person into its custody and holds him there

against his will, the Constitution imposes upon it a

corresponding duty to assume some responsiblity for his safety.”

DeShaney v. Winnebago County Soc. Servs. Dept., 489 U.S.

189, 199-200, 109 S.Ct. 998, 1005-06, 103 L.Ed.2d 249 (1989).

25 There is another route to police officer liability under the civil rights

statutes for injuries perpetrated by third persons. Pursuant to a long line of

civil cases, police officers have a duty to intercede when their fellow officers

violate the constitutional rights of a suspect or other citizen. E.g., O'Neill v.

Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988); Byrd v. Clark, 783 F.2d 1002,

1007 (llth Cir. 1986); Brunner v. Dunaway, 684 F.2d 422, 425-26 (6th Cir.

1982), cert. denied, 459 U.S. 1171, 103 S.Ct. 816, 74 L.Ed.2d 1014 (1983);

Putnam v. Gerloff, 639 F.2d 415, 423 (8th Cir. 1981); Byrd v. Brishke, 466

F.2d 6 (7th Cir. 1972). In these cases, the constitutional right violated by the

passive defendant is analytically the same as the right violated by the person

who strikes the blows. Thus an officer who failed to intercede when his

colleagues were depriving a victim of his Fourth Amendment right to be free

from unreasonable force in the course of an arrest would, like his colleagues,

be responsible for subjecting the victim to a deprivation of his Fourth

Amendment rights.

The government chose not to rely on this line of authority in drafting the

indictment, perhaps because Byrd v. Brishke, the leading case in this line, is

explicitly premised on principles of tort liability. 466 F.2d at 10-11. We note

that Reese, which was decided after the trial in this case, strongly suggests that

both approaches are available in « criminal case. See 2 F.3d at 884 & 0.20,

888-89.

49a

In this circuit, that duty obtains not only when the victim is in

custody, but also when the state has created the danger to which

the victim is exposed. Wood v. Ostrander, 879 F.2d 583, 589-

90 (9th Cir. 1989) (victim in high crime area raped when police

officer impounded car in which victim was passenger, leaving

her stranded), cert. denied, 498 U.S. 938, 111 S.Ct. 341, 112

L.Ed.2d 305 (1990); L.W. v. Grubbs, 974 F.2d 119 (9th Cir.

1992) (prison nurse raped by violent sex offender assigned to

work with her; state knew offender was likely to rape again, but

did not tell nurse of his proclivities), cert. denied, U.S. __,

113 S.Ct. 2442, 124 L.Ed.2d 660 (1993).

The right which is established in these substantive due

process cases is not the narrow right to be protected from

constitutional wrongs committed by third persons. Rather,

because the individual has been placed in a dependent and

helpless position, she is entitled to the broader right to be

protected from harm. In Lynch, in Grubbs, and in Wood, the

third persons who inflicted the victims’ injuries, in fact, were

not state actors. They were private citizens whose own actions

could not have given rise to liability under § 242 or § 1983.

The state actors—the defendants who failed to intervene, or who

created the danger—were alone responsible for constitutional

crimes or torts. These cases make clear that the “harm” from

which the custodial victim has a right to be protected is not

necessarily an independent constitutional violation but rather

need be no more than a common-law crime or tort. Thus in this

case, there was no reason for the court to instruct the jury that

Koon was liable only if he permitted third persons to inflict force

which would amount to an independent Fourteenth Amendment

violation shocking to the conscience. Indeed, such an instruction

would have been erroneous.

The district court instructed the jury that King had a right to

be kept from “an unreasonable use of force” while in custody—a

Fourth Amendment standard. This was altogether correct. If

Powell, Briseno, and Wind had inflicted only those injuries they

were permitted to inflict as police officers subduing an arrestee—

if they had used only reasonable force—there would have been

no harm from which Koon was obligated to protect King.

50a

Because the third-party actors were officers attempting to make

an arrest, Koon's Fourteenth Amendment duties to the custodial

subject were to protect against only such force as was

unreasonable.?©

This analysis finds support in Reese, where, as here, a

police sergeant was convicted under 18 U.S.C. § 242 of

violating the rights of custodial subjects by deliberately failing to

intervene as his officers beat them. 2 F.3d at 887-88, The

excessive force instruction given to the jury set forth a Fourth

Amendment test of reasonableness under the circumstances--and

was approved by this court. 2 F.3d at 891, 898-99. Reese thus

recognized a custodial subject's substantive due process right to

be protected from Fourth Amendment violations by third

persons.

Koon attempts to distinguish Reese by arguing that it was

permissible for the court to give a Fourth Amendment excessive

force instruction there only because the indictment in that case

left it unclear as to whether the defendants were charged under

the Fourth or the Fourteenth Amendment. As we have

explained, however, even in the context of an alleged deprivation

of Fourteenth Amendment rights, it was altogether proper for the

district court to use a Fourth Amendment excessive force

benchmark when describing the harm an officer was obligated to

2©That does not mean that Koon was criminally liable for any Fourth

Amendment violation by the other officers. His criminal liability was premised

on a willful failure to intercede. Thus if the blows had been struck so rapidly

that Koon had no realistic opportunity to intervene, he would not be liable. See

O'Neill, 839 F.2d at 11.

The district court recognized this point in its sentencing memorandum:

Although the court suggested strongly that Briseno's stomp may have been a

violation of King's Fourth Amendment rights, the court did not hold Koon

accountable for that stomp, since it was so sudden that Koon could not have

anticipated it. Koon, 833 F.Supp. at 779.

S5la

protect a custodial suspect from suffering at the hands of other

police officers.27

Koon next contends that the jury should have been

instructed that a person is in official custody only if he has been

taken to “a police facility or other pretrial detention facility.”

But even assuming that the rights of all pretrial detainees to be

free from excessive force are governed by substantive due

process standards, this does not mean that a person has

substantive due process rights only if he is a pretrial detainee.

As in the § 242 cases cited above, King's right to protection

arose when he came into custody—not when he was placed in a

“facility.”

The district court instructed the jury that a person is in

official custody if, “in light of all circumstances surrounding the

incident, a reasonable person in that situation would have

believed he or she was not free to leave." RT 4/10/93 (Jury

Instructions) at 16. Although this standard is taken from the

Fourth Amendment case of United States v. Mendenhall, 446

U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980),

the same definition of “custody” applies in the Fourteenth

Amendment context. Indeed Koon does not suggest any

alternative “Fourteenth Amendment” definition of custody. He

offers only the logically fallacious argument that because all

pretrial detainees have substantive due process rights, a person

must be a pretrial detainee to enjoy those rights.

In any event, Koon's custody argument is laid to rest by

Reese, in which the court upheld a conviction based on the

defendant's willful deprivation of a victim's right to be kept free

from harm while in official custody, the only “custody” relevant

27 Koon also points out that the defendants in Reese were charged with

conspiracy, while he was not. The police sergeant in Reese, however, was

charged with several substantive counts under 18 U.S.C. § 242 as well as with

conspiracy under 18 U.S.C. § 241. The court upheld his conviction on both

the conspiracy count and the substantive counts. 2 F.3d at 875, 877, 887-90.

52a

to the counts on which defendant was convicted consisted of

investigatory stops accompanied by pre-arrest scuffles between

officers and suspects. 2 F.3d at 875, 877, 887-90. Since that

much was clearly present in this case as well, the district court

did not err by failing to tell the jury that it had to find more.?®

2. Willfulness

The court gave the following instructions on willfulness:

[1] An act is done willfully if it is done voluntarily

and intentionally, and with a specific intent to do

something this law forbids; that is, with an intent to

violate a protected right.

[2] In Count 1, the required specific intent is the intent

to use more force than is reasonable under all of the

circumstances.

[3] In Count 2, the required specific intent is the intent

to refrain from protecting a person from an

unreasonable use of force while that person is in

official custody.

[4] It is not necessary for you to find that a defendant

was thinking in constitutional terms at the time. You

may find that a defendant acted with the required

specific intent, even if you find that he had no real

familiarity with the Constitution or with the particular

constitutional right involved, provided that you find

28 Koon also argues that there was insufficient evidence to sustain his

conviction under Fourteenth Amendment standards of force and custody.

Since the jury was properly instructed as to the Fourth Amendment definitions

of those terms, and Koon does not argue that the evidence was insufficient to

sustain a conviction under those standards, Koon's sufficiency of the evidence

argument fails.

53a

that the defendant intended to accomplish that which

the Constitution forbids.

[5] The government may meet its burden, even if the

defendant was motivated by fear, anger, or some other

emotion, provided that the intent which I have

described to you is present.

[6] The term “willfully” as used in these instructions

to describe the alleged state of mind of a defendant

means that he knowingly acted or failed to act

deliberately and intentionally as contrasted with

accidentally, carelessly or unintentionally.

RT 4/10/93 (Jury Instructions) at 17-20.

Appellants concede that {{ 2 and 3 are correct statements of

the law. They contend, however, that the effect of 44 4, 5, and

6 was to allow the jury to convict on the basis of acts which

were merely volitional, rather than undertaken with the specific

intent to violate King's rights. If appellants are correct, the

problem is serious: “the violation of a federally protected right

and the specific intent to violate that right are separate elements

of the crime established by [§ 242]." Reese, 2 F.3d at 884

(emphasis in original).

We review de novo whether the district court has correctly

Stated the law as to the elements of the crime, but review the

manner of expression for abuse of discretion. Jd. at 883. We

must decide whether the jury instructions, taken “as a whole are

misleading or inadequate to guide the jury's deliberation."

United S.~tes v. Joetzki, 952 F.2d 1090, 1095 (9th Cir. 1991).

Paragraph 4 is a correct statement of the law. While it may

appear paradoxical to say both that a defendant must have the

specific intent to violate the Constitution and that the defendant

may have that intent even if he is not “thinking in constitutional

terms," this seeming paradox is explained by the fact that

“willfulness" encompasses “'reckless disregard -. ¢

54a

States, 325 U.S. 91, 105, 65 S.Ct. 1031, 1037, 89 L.Ed. 1495

(1945)); see also United States v. Gwaltney, 790 F.2d 1378,

1386 (9th Cir. 1986), cert. denied, 479 U.S. 1104, 107 S.Ct.

1337, 94 L.Ed.2d 187 (1987). Indeed, the very language

defendants complain of in { 4 was approved by Reese.

Paragraph 5 is also correct. After noting that the

government could meet its burden of proving specific intent even

if a defendant was motivated by fear, anger, or some other

emotion, the court reiterated that the government still had to

prove “the intent which I have described to you." Since the

court's earlier instruction defined specific intent correctly, this

later instruction could not be incorrect unless the statement about

motivation and emotions was somehow wrong. Appellants do

not claim that it was.

Finally, { 6 does not dilute the definitions of specific intent

which appellants concede were correct. It simply makes clear

that negligence or inadvertence do not amount to willfulness.

This statement is far more helpful than hurtful to appellants.

We conclude that there was no error in the jury

instructions.?9

I. Sufficiency of the Evidence to Support Powell's

Conviction

There is sufficient evidence to support a conviction if,

"reviewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

29 appellants also argue that in closing, the government misled the jury about

the nature of the intent it was required to prove. The prosecutor stated that

"[iJt is not, I repeat it is not, what these defendants think was reasonable. It is

what a reasonable and ordinary police officer thinks is reasonable that is the

standard you must employ.” RT 4/10/93 (AM) at 99. That statement was

made, however, “on the issue of reasonableness” of the force. Id. The

_ statement did not refer to intent, which the prosecutor addressed earlier in his

argument by reading from the instructions soon to be given by the court. The

prosecutor kept specific intent (a subjective element) and reasonableness of the

force under the Fourth Amendment (an objective element) quite distinct.

55a

essential elements of a crime beyond a reasonable doubt.'"

United States v. Bishop, 959 F.2d 820, 829 (9th Cir. 1992)

(quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,

2789, 61 L.Ed.2d 560 (1979)).

Powell contends that the evidence was insufficient to

establish either the unreasonableness of the force he used or his

willfulness. On the first point, he focuses only on the force used

from 1:07 to 1:26 in the videotape—the period in which the

district court, in its sentencing memorandum, concluded that

criminal conduct occurred. Powell points out that with respect

to earlier portions of the videotape, the district court concluded

that his blows were a reasonable response to King's movements.

Powell then argues that since King moved again after being

stomped on by Briseno, the blows he inflicted after that also

were reasonable.

We reject this argument. In reviewing the sufficiency of the

evidence, we are not bound by the district court's findings at

sentencing. The comparison Powell draws between the earlier

and the later portions of the videotape, since it is based on the

district court's sentencing memorandum, is without force in this

context. But even if that were not so, Powell's argument fails as

a factual matter. The district court found that the movement of

King's body after Briseno's stomp was involuntary. Powell does

not contend that there was insufficient evidence for the jury to

have made this same finding, or to have found that he was aware

of the involuntary nature of King's movements. It is simply

disingenuous to say that an involuntary movement in response to

a stomp poses the same threat as a voluntary movement made in

an attempt to resist arrest.

Powell also argues that the evidence was insufficient to

show that his actions from 1:07 to 1:26 were willful. He points

Out that he was not found guilty of being an aider and abettor of

Briseno. However, since the jury acquitted Briseno (because it

found the stomp to be reasonable, or because it found the stomp

not to be a willful use of unreasonable force, or form some other

reason we know not of), the jury had no basis for convicting

Powell of aiding and abetting Briseno. 18 U.S.C. § 2; United

States v. Powell, 806 F.2d 1421, 1424 (9th Cir. 1986) (in order

56a

to sustain an aiding and abetting conviction, “courts in this

circuit, as in others, continue to require evidence showing that a

principal offense has been committed—including requiring

evidence that some principal had the requisite intent"). Yet the

jury could still find that Powell willfully used unreasonable force

in delivering the blows that followed Briseno's stomp.

The videotape and the testimony of the government

witnesses who interpreted it provided ample evidence that

Powell's conduct was unreasonable. The jury was instructed

that it was permitted to infer "that a person ordinarily intends all

natural and probable consequences of an act knowingly done."

RT 4/10/93 (Jury Instructions) at 18. That inference was

available here, and would allow the jury to infer that

unreasonable force was intended. In addition, Powell's remarks

to the dispatcher after King had been handcuffed, and his

remarks to King at the hospital were in themselves sufficient to

support a finding of willfulness.

J. Sentencing Issues

Appellants were sentenced under § 2H1.4 of the United

States Sentencing Commission Guidelines Manual, the provision

pertaining to violations of 18 U.S.C. §242. Section 2H1.4

provides for a base offense level of either 10, or 6 plus the

offense level applicable to “any underlying offense,” whichever

is greater. “Underlying offense” is defined as “any offense

under federal, state, or local law other than an offense that is

itself covered under Chapter Two, Part H, Subpart 1.”

U.S.S.G. § 2H1.1, comment. (n.1).

In this case, the underlying offense was aggravated assault,

which carries a base offense level of 15, U.S.S.G. § 2A2.2, to

which was added 6 for a total of 21. The district court applied

an upward adjustment of 4 for use of a dangerous weapon

(U.S.S.G. § 2A2.2(6)(2)(B)), and a second upward adjustment of

2 for bodily injury (U.S.S.G. § 2A2.2(b)(3)(A)), for a total of

27.

The court declined to impose a four-level upward

adjustment for serious bodily injury, because it found that King's

serious injuries—a fractured leg, and head and facial injuries—

57a

were sustained at a time when the officers were using lawful

force. The court found that the force applied by the officers

during the first 55 seconds of the Holliday videotape was a

legitimate response to the threat King apparently posed. After

55 seconds, King became still. At 1:05, Briseno stomped on

King's upper thorax, and King's body writhed involuntarily.

Powell and Wind moved in and struck a new series of baton

blows, between 1:07 and 1:26 on the videotape. These last

blows, and these only, according to the district court, were

unlawful. Koon, 833 F.Supp. at 779-80.

The district court departed downward five levels for victim

misconduct and three levels based on a combination of other

factors.2° The government appeals from both of the downward

departures and from the failure to adjust upward for serious

bodily injury. We review de novo whether the district court had

authority to depart. United States v. Lira-Barraza, 941 F.2d

745, 746 (9th Cir. 1991) (en banc). We review the factual

findings concerning serious bodily injury for clear error. United

States v. Chapnick, 963 F.2d 224, 226 (9th Cir. 1992).

The Sentencing Commission has instructed courts to treat

each guideline as carving out a “heartland,” defined as the “set

of typical cases embodying the conduct that each guidelines

describes.” U.S.S.G. Ch. 1, Pt. A, § 4(b). Departure may be

warranted in cases falling outside the heartland—atypical cases

"to which a particular guideline linguistically applies but where

conduct significantly differs from the norm." Jd. The

aggravating or mitigating circumstances which justify a

departure must be circumstances of a kind or a degree “not

adequately taken into consideration by the Sentencing

Commission in formulating the guidelines." 18 U.S.C.

§ 3553(b); U.S.S.G. § 5K2.0, p.s.

Both Congress and the Sentencing Commission have placed

restrictions on the types of factors which may be considered in

30 after the departures, the applicable range given a Criminal History

Category of 1 was 30-37 months. Both appellants were sentenced to 30

months in prison.

58a

sentencing. E.g., 28 U.S.C. § 994(d); see also U.S.S.G. Ch. 1,

Pt. A, § 4(b), intro. comment. We have frequently recognized

that any sentence must be consistent with the structure of and the

policies behind the federal sentencing statutes and the

Guidelines. 18 U.S.C. §3553(a); United States v. Valdez-

Gonzalez, 957 F.2d 643, 647 (9th Cir. 1992); United States v.

Anders, 956 F.2d 907, 914, (9th Cir. 1992), cert. denied, __

U.S. __, 113 §.Ct. 1592, 123 L.Ed.2d 158 (1993).

1. Three-Level Downward Departure

The district court based the three-level downward departure

on a combination of three factors: (1) the “additional

punishment” appellants would receive on account of their

unusual susceptibility to prison abuse and the administrative

LAPD proceedings to which they would be subjected; (2) the

extreme absence of a need to protect the public from future

wrongdoing; and (3) the unfairness of successive state and

federal prosecutions for the same conduct. The court recognized

that none of these factors independently warranted a departure,

but concluded that these factors taken together did justify a

three-level departure. Koon, 833 F.Supp. at 786.

We do not quarrel with the district court's approach. Our

circuit has recognized that although "[tJhe [federal sentencing]

Statute speaks in the singular of ‘mitigating circumstance,’ ...

[t}here is no reason to be so literal minded as to hold that a

combination of factors cannot together constitute a mitigating

circumstance." United States v. Cook, 938 F.2d 149, 153 (9th

Cir. 1991). We have held that a “unique combination of factors”

may constitute a “circumstance” that mitigates. Jd.,; see also

United States v. Floyd, 945 F.2d 1096, 1099 (9th Cir. 1991),

corrected, 956 F.2d 203 (9th Cir. 1992), and subsequently

superseded, U.S.S.G. § 5H1.12; Anders, 956 F.2d at 911-14.

However, although a district court may grant a departure

based on a combination of factors that do not individually justify

a departure, this policy does not permit the district court

consider in the mix factors of

3

59a

this reason, we first consider individually each of the factors

identified by the court to determine if each is an appropriate part

of the mix.

As we examine each factor, our purpose is not to determine

whether each factor taken alone justifies a departure, but rather

whether consideration of the particular factor at all as part of the

decision to depart is consistent with the structure and purposes

of the Guidelines and the federal sentencing statutes. Were we

to determine that these factors constitute permissible grounas for

a departure, we would then consider whether, taken in

combination, these factors constitute a circumstance that

mitigates .>!

a. Additional Punishment

In granting the three-level downward departure, the district

court relied in part on the fact that appellants would be subject to

“additional punishment" that flowed from their convictions in

addition to the court-imposed sentence. This “punishment”

involved two types: (1) the multiplicity of additional

administrative proceedings to which appellants would be

subjected, and (2) the anticipated abuse in prison because of

appellants’ particular vulnerability. Koon, 833 F. Supp. at 788-

31 In our previous decisions considering departures based on a combination of

factors, the district court has identified a single mitigating circumstance which

unified these factors and justified a departure. For example, in Floyd, we

found that a combination of factors - lack of education, imprisonment at age

17, and abandonment by parents - created the single mitigating circumstance of

lack of youthful guidance. 945 F.2d at 1099 & N.2. Similarly, in United

States v. Fairless, 975 F.2d 664 (9th Cir. 1992), we held that a combination of

factors created the mitigating circumstance that the defendant's act of armed

robbery was a single act of aberrant behavior. id. at 666-69. In this case, by

contract, the district court did not suggest that the separate factors « wWentfied

combined to form e single mitigating circumstance, but instead wenafied three

unrelated factors. Alisough we question whether the rabonale we announced

in Cook extends to cases in which a downward departure is based on «

combination of unrelated factors we need not decide this issuc because we

conclude that none of the individual factors identified by the district court

should have been considered in making the decision to depart.

89. The district court relied on separate analyses to justify these

two types of “additional punishment."

i. Additional Adversar ai

Proceedings

The court recognized that, because of their convictions,

appellants would be subjected to quasi-judicial administrative

proceedings before the LAPD Board of Rights, resulting in

appellants’ loss of employment and tenure, their prospective

disqualification from the field of law enforcement, and the

anguish and disgrace of these deprivations. Koon, 833 F. Supp.

at 789. The only case cited by the district court to support this

departure is United States v. Aguilar, 994 F.2d 609 (9th Cir.),

op. withdrawn, 11 F.3d 124 (1993), and op. replaced on reh'g

en banc, 21 F.3d 1475 (1994), an opinion which has since been

withdrawn and is no longer sound precedent.

As we have already noted, a district court may depart only

“if the circumstance upon which it seeks to base its departure ‘is

consistent with the sentencing factors prescribed by Congress. '*

United States v. Pacheco-Osuna, 23 F.2d 269, 271 (9th Cir.

1994) (quoting Lira-Barruza, 941 F.2d at 746.) Thus,

[ajithough §3553(b) does not define the term

“aggravating or mitigating circumstance," the term

does suggest that a factor constitutes a permissible

basis for departure only if it speaks to the culpability of

the defendant or the severity of the offense, or if it is

otherwise related to some other congressionally-

6la

Pacheco-Osuna, 23 F.3d at 272; see also Crippen, 961 F.2d at

884; 18 U.S.C. § 3553(a).

In United States v. Alvarez-Cardenas, 902 F.2d 734 (9th

Cir. 1990), we considered whether the fact that a defendant

faced a threat of deportation was an appropriate fact to consider

at sentencing. Reasoning that the threat of deportation was not a

circumstance that spoke to the offense in question or to the

offender's character, we concluded that the threat of deportation

was irrelevant for sentencing purposes. Jd. at 737. We

subsequently noted that the threat of deportation did not fall

within any of the sentencing factors set forth by Congress in

§ 3553(a). Cripen, 961 F.2d at 885.52 Since our decision in

Alvarez-Cardenas, we have refused to permit departures based

on factors that do not speak to the offender's character, the

nature or seriousness of the offense, or some other legitimate

sentencing concern. See United States v. Ullyses-Salazar, 28

F.2d 932, 938 (9th Cir. 1994) (deterrence of government

misconduct that has not persuaded defendant to break the law is

not an appropriate ground for a departure); Pacheco-Osuna, 23

F.2d at 272 (same); United States v. Williams, 978 F.2d 1133,

1136 (9th Cir. 1992), cert. denied, _ U.S. 113 S.Ct. 1606,

123 L.Ed.2d 168 (1993) (same).°°

32 We also noted that the Sentencing Guidelines suggest that departures from

the sentencing range prescribed by the Guidelines generally reflect the

defendant's culpability and the seriousness of the offense. Compare USSG.

§ SK2 (listing as grounds for departure factors based on the characteristic of

the crime or on characteristics particular to the defendant's culpability or

danger to society) with U.S.S.G. § SHI (factors that speak to the defendant's

personal characteristics or to his status are generally not proper grounds for a

departure).

33 in stating that factors that speak to the nature and seriousness of the crime

or to the offender's culpability are relevant to sentencing and to departure, we

do not intend to imply that factors that do not speak to these issues are never

relevant. See Crippen, 961 F.2d at 885 (“We do not mean to suggest that only

factors which bear upon a defendant's personal history or upon the crime in

question may be considered in sentencing. Courts may depart for other

aggravating or mitigating circumstances”); U.S.S.G. Ch. 1, Pt. A, § 4(b) (with

[Footnote contunued on next page)

62a

Personal and professional consequences that stem from a

‘minal itn om one : is for d ay

nor are they appropriately considered as part of a larger complex

of factors. They are not tied to any penological purpose or

legitimate sentencing concern expressed in the federal sentencing

statutes.

Contrary to the district court's assumptions, sentences

imposed under the Guidelines do not impose the only

consequence of committing a crime, nor is it intended that they

be the only consequence. To the contrary, the societal

consequences that flow from a criminal conviction are virtually

unlimited. Individuals may lose their jobs or be foreclosed from

serving in future professions; their marriages are destroyed; they

may be plunged into poverty. Some individuals may be

deported, see United States v. Alvarez-Cardenas, 902 F.2d 734,

737 (9th Cir. 1990), while those who have been convicted of

drug or racketeering offenses may lose their homes and their

investments to the federal government in forfeiture proceedings.

World class figure skaters may lose the right to compete in

international competition. Virtually all individuals who are

convicted of serious crimes suffer humiliation and shame, and

many may be ostracized by their communities.

All of these consequences could be considered “additional

punishments” that flow from conviction, yet seldom can one

conceive of a situation in which these consequences form an

appropriate basis for granting a departure. This is so because

the criminal justice system cannot and does not attempt to be the

[Footnote continued from previous page]

the exception of certain listed factors “that the court cannot take into account as

grounds for a departure . . . the Commission does not intend to limit the kinds

of factors, whether or not mentioned anywhere else in the guidelines, that

could constitute grounds for departure in an unusual case."). We note only that

“for a factor to be considered, it must be tied to some legitimate penological

Purpose or legitimate sentencing concern expressed in the Sentencing Reform

Act.” Crippen, 961 F.2d at 885. In most cases, these factors will speak to the

nature and seriousness of the defendant's crime or to his culpability.

63a

sole arbiter of the consequences of criminal acts. To permit the

system to assume such a role would create a system of

sentencing that would be boundless in the moral, social, and

examinations it required courts to make. See

United States v. Walker, 27 F.2d 417, 419 (9th Cir. 1994)

(refusing to hold that post-arrest emotional trauma is a valid

ground for a departure and noting that if it did, every arrestee

would request a departure on that basis and that courts would be

powerless to separate the valid claims from the invalid). Given

the range of possible “additional punishments” that a court might

consider when sentencing, the district court's suggested approach

can only lead to huge disparities in sentences, thereby conflicting

with one of the overriding purposes of the Sentencing

Guidelines: the reduction of sentencing disparities between

individuals who have committed equivalent crimes. See 28

U.S.C. $§ 991(6)(1)(B) & 994(f). A related concern is the ease

with which this factor can be used to justify departures that are

based, either consciously or unconsciously, on the defendant's

socioeconomic status, a factor that is never a permissible basis

for a departure. See U.S.S.G. § 5H1.10.

As a final matter, the consequences of conviction identified

takes os fends om ete Gham, exe

unique burdens flow from their convictions"). Rather than

reducing a punishment for such individuals, the Guidelines

not hold such a position. U.S.S.G. §3B1.3 comment.

(backg'd).

In sum, we conclude that the district court's reliance on the

“additional punishment” flowing from a eared criminal

conviction was impermissible.

ii. Extreme vulnerability to

prison abuse

In addition to relying on the “additional punishment” that

flows from criminal conviction, the district court considered as

“additional punishment” appellants’ potential extreme

vulnerability to abuse in prison. The court noted that the

“widespread publicity and emotional outrage which have

surrounded this case from the outset, in addition to the

defendants’ status as police officers, lead the Court to find that

Koon and Powell are particularly likely to be targets of abuse

during their incarceration.” Koon, 833 F. Supp. at 788. In

justifying this basis for the departure, the district court relied on

two opinions from the Second Circuit which affirmed a

downward departure based on the defendant's “extreme

vulnerability” to prison abuse. United States v. Gonzalez, 945

F.2d 525 (2d Cir. 1991); United States v. Lara, 905 F.2d 599

(2d Cir. 1990).

In Lara, the Second Circuit upheld a departure where the

defendant had previously been victimized “as a consequence of

his diminutive size, immature appearance and bisexual

orientation,” and the only way to protect him was to place him

in solitary confinement. 905 F.2d at 601. The court held that

although the Sentencing Commission had considered the

vulnerability of offenders to physical attack in prison when it

formulated the Guidelines, see 28 U.S.C. § 994(g), it did not

consider vulnerability to the extent present in the case before it—

“where the only means for prison officials to protect [the

defendant] was to place him in solitary confinement.” Jd. at

604. The Second Circuit subsequently extended this analysis in

Gonzalez, where it approved a downward departure for a

defendant who was small, feminine-looking, and had the

appearance of a fourteen year old, even though there was no

history of prior prison abuse and no indication that the defendant

would be placed in solitary confinement. 945 F.2d at 526-27.

Although our circuit has never upheld a downward

departure on the grounds of extreme vulnerability to prison

abuse, we have implied that such a departure might be

appropriate in certain circumstances. United States v. Martinez-

65a

Guerrero, 987 F.2d 618, 620 (9th Cir. 1993). However, the

extension of the Second Circuit's cases to appellants’ case is

problematic because appellants’ vulnerability rests solely on their

status as police officers and on the public outrage that their

crime engendered. In contrast, in Martinez-Guerrero, we

understood the Second Circuit's cases to rely primarily upon the

defendant's physical characteristics, including the individual's

age, mental condition, and the existence of physical

impairments. Jd. at 620-21; see also U.S.S.G. §§ 5HI1.1,

5H1.3, 5H1.4. We agreed that an extraordinary physical

impairment might provide a reason for a departure but concluded

that legal blindness did not constitute such an impairment. /d.;

see also United States v. Garza-Juarez, 992 F.2d 896 (9th Cir.

1993) (affirming downward departure based in part on serious

mental disorder that causes defendant to suffer from panic

attacks with agoraphobia), cert. denied, _ U.S. ___, 114 S.Ct.

724, 126 L.Ed.2d 688 (1994); United States v. Long, 977 F.2d

1264, 1277 (8th Cir. 1992) ("an extraordinary physical

impairment that results in extreme vulnerability is a legitimate

basis for departure”).

Thus, although we have recognized the possibility of basing

a departure on an extraordinary physical impairment, we have

never extended this analysis to include departure based on an

individual's occupation or his notoriety. We decline to do so

today on the grounds that in this case such a departure would be

inconsistent with the structure and policies of the Guidelines.

Although it is true that police officers, as a group, are

unpopular with prison inmates and are vulnerable to abuse in

prison, the reliance solely on hostility toward a group of which

the defendant is a member provides an unlimited open-ended

rationale for departing. While a departure based on U.S.S.G.

§ 5H1.4 involves the relatively objective question of whether an

extraordinary physical impairment exists, the determination of

whether an individual's membership in a group regarded with

hostility leaves him vulnerable is both subjective and open-

ended. Nothing would prevent this rationale from being applied

to numerous groups—such as gang members who may face

increased abuse from members of a rival gang, police

informants, or child abusers—all of whom face an increased risk

66a

of abuse in prison. Because the number of defendants who

might qualify for this departure is virtually unlimited, acceptance

= this basis for departure would subvert the Guidelines’ goal of

reducing unwarranted disparities in ing. 18

meres Aone sentencing U.S.C.A.

. Extension of the Second Circuit's cases to lants'

is troubling for another reason as well. eaae te mane

vulnerability cases in which the departure is grounded on factors

over which the defendant has little or no control, in this case the

vulnerability to prison abuse arises directly from the public's

awareness of appellants’ crime. Any public outrage was the

direct result of appellants’ criminal acts. It is incongruous and

inappropriate to reduce appellants’ sentences specifically because

individuals in society have condemned their acts as criminal and

an abuse of the trust that society placed in them. We therefore

conclude that a downward departure based on public outrage

over the crime that was committed is contrary to the Guidelines’

goals of promoting respect for the law and imposing sentences

that reflect the seriousness of the crime. See 18 U.S.C.A

§ 3553(a)(2)(A).35 beet

34 Contrary to the situation in Lara, nothing in the record suggests that

appellants must be placed in a continuous solitary confinement in order to

Protect them from abuse in prison. We are not faced with a situation in which

the punishment imposed by the criminal justice system is far harsher than

ordinary, and thus we do not decide whether a downward departure in such a

situation is permissible.

35 We : . ,

recognize that this case received exceptional media coverage and that

the Holliday videotape was viewed worldwide. Thus, contrary to most cases in

which a police officer stands accused of unlawfully depriving a citizen of her

civil rights, the entire world was aware of the arrest of Rodney King. The

district court was therefore correct that the publicity and emotional outrate that

have surrounded this case are exceptional. However, such a fortuity is an

insufficient basis for granting a downward departure.

67a

b. Absence of a Need to Protect the

Public

The second factor relied on by the district court in granting

the three-level downward departure is the absence of any need to

protect the public from future misconduct by appellants. Koon,

833 F. Supp. at 789-90. The district court reasoned that the

federal sentencing statutes require it to consider the need to

protect the public from further criminal activity, see 18 U.S.C.

§ 3553(a)(2)(C), and concluded that because neither Koon nor

Powell is dangerous or likely to engage in future criminal

conduct, the sentence imposed need not reflect the need to

protect the public. Jd. at 790.

In its opinion, the district court recognized that the

Guidelines consider the need for public protection by factoring a

defendant's criminal history into the calculation of the sentence.

See U.S.S.G. Ch.4, Pt. A, intro. comment. Thus, the

Guidelines specifically provide that first-time offenders like

Koon and Powell should be classified in Criminal History

Category 1, U.S.S.G. §§4Al1.1, 4A1.3, Ch.5, Pt.A.

However, the court reasoned that

Koon and Powell fall into the lowest criminal history

category, along with first-time offenders who may

manifest a violent nature or a potential for recidivism.

Within Criminal History Category I, the Guidelines do

not adequately distinguish defendants who, for a

variety of reasons, are particularly likely to commit

crimes in the future. Here, the need to protect the

public from the defendants’ future criminal conduct is

absent “to a degree” not contemplated by the

Guidelines

Koon, 833 F. Supp. at 790 n. 20.

We are sympathetic to the district court's belief that

appellants’ low likelihood of recidivism should be relevant in

fashioning a sentence. However, the fact that appellants are

neither dangerous nor likely to commit crimes in the future is

not an appropriate basis for a departure in this case. Although it

is true that some offenders who are classified in Criminal

68a

History Category I have a greater likelihood of recidivism than

appellants, the Commission already took this factor into account

when it drafted the Guidelines, which provide:

The lower limit of the range for a Category I criminal

history is set for a first time offender with the lowest

risk of recidivism. Therefore, a departure below the

lower limit of the guideline range for Criminal History

Category I on the basis of the adequacy of criminal

history cannot be appropriate.

U.S.S.G. § 4A1.3, p.s.

Thus, the Commission has expressly disapproved of

sentencing courts’ departing below the range for the category

that already reflects the lowest risk. This is so even for

defendants who may be unusually unlikely to commit crimes in

the future. For this reason, a downward departure based on

these grounds is inconsistent with the Sentencing Guidelines.

See United States v. Farah, 991 F.2d 1065, 1070 (2d Cir. 1993);

United States v. Mogel, 956 F.2d 1555, 1563 (11th Cir.), cert.

denied, __ USS. » 113 S.Ct. 167, 121 L.Ed.2d

‘oon uo -Ed. 115

e. Successive State and Federal

Prosecutions

The third and final factor cited by the district court in

granting a three level departure is the "spectre of unfairness" and

the burden on the defendants created by successive state and

an prosecutions. Koon, 833 F.Supp. at 790. As the

is court properly recognized, the federal prosecutio

Neen ond Deed G8 an dite te Wh dames

prohibition against double jeopardy: under the doctrine of "dual

sovereignty," the state and federal governments may each

prosecute an individual for the same act when the act violates

361n & similar context, we have relied on these policy statements in the

Guidelines to hold that a downward departure from Criminal History Category

I cannot be based on the defendant's "absolutely clean prior record." United

States v. Berlier, 948 F.2d 1093, 1095 (9th Cir. 1991).

69a

each sovereign's respective laws. Heath v. Alabama, 474 U.S.

82, 89, 106 S.Ct. 433, 437, 88 L.Ed.2d 387 (1985). However,

the court concluded that the federal conviction following a state

acquittal raises a “spectre of unfairness" that imposes unique

burdens on appellants and supports a downward departure.

Koon, 833 F. Supp. at 790.

Reliance on the “spectre of unfairness” of dual prosecutions

to support a departure is improper because it speaks neither to

the culpability of the defendant, the severity of the offense, nor

to some other legitimate sentencing concern. See Crippen, 961

F.2d at 884. To the contrary, application of this factor directly

conflicts with the court's mandate to impose a sentence that

"reflect[s] the seriousness of the offense." 18 U.S.C.

§ 3553(a)(2)(A). Once the state has prosecuted an individual for

a criminal: act, the federal government will undertake a

successive prosecution only when the Attorney General decides

that the earlier state prosecution did not vindicate “compelling

{flederal interests." United States v. Snell, 592 F.2d 1083,

1087-88 (9th Cir.), cert. denied, 442 U.S. 944, 99 S.Ct. 2889,

61 L.Ed.2d 315 (1979). Im this case, the Attorney General's

authorization of a federal prosecution necessarily reflected the

conclusion that the distinct federal interests in protecting the

constitutional rights of citizens to be free from unreasonable

force at the hands of government had not been adequately

vindicated in the state court proceeding. To reduce a sentence in

these circumstances is in direct conflict with the Guidelines. We

find nothing in the structure or policies of the Guidelines to

support a departure on the grounds that successive prosecutions

are burdensome. See United States v. Woodard, 927 F.2d 433,

435 (8th Cir.) (rejecting argument that prior state prosecution for

same conduct should lead to a more lenient sentence), cert.

denied, _U.S. ___, 112 S.Ct. 246, 116 L.Ed.2d 201 (1991).

In sum, we conclude that consideration of any of the factors

identified by the district court to support the three-level

departure, separately or collectively, is, under the facts of this

case, inconsistent with the structure and policies of the

Guidelines. These factors are improper grounds on which to rest

a departure.

70a

2. Five-Level Downward Departure

In support of the five-level departure, the district court cited

U.S.S.G. § 5SK2.10, p.s., which states that a court may sentence

below the Guidelines range “[i]f the victim's wrongful conduct

contributed significantly to provoking the offense behavior."

The government contends that departing on this basis was

erroneous because, generally speaking, victim misconduct does

not remove a criminal prosecution against a police officer from

the heartland of cases to which 18 U.S.C. § 242 and U.S.S.G.

§ 2H1.4 apply. The government observes that police officers as

part of their job must interact on a regular basis with persons

who break the law; victim misconduct is the norm, not the

exception. The government also points out that police officers,

unlike civilians, are carefully trained on how to respond

appropriately to misconduct, and how to avoid becoming

provoked and overreacting; hence, the government argues,

provocation is less exculpatory in a police misconduct case.

A close examination of the district court's sentencing

memorandum reveals that the court ultimately did not conclude

that appellants were provoked in precisely the manner

contemplated by §5K2.10. The guidelines requires that the

victim's wrongful conduct “contributed significantly to

provoking the offense behavior." After summarizing King's

misconduct—speeding, driving while intoxicated, fleeing in his

car from pursuing officers, refusing to obey the officers’

commands to get on the ground and remain prone, attempting to

escape from police custody, charging Powell—the court

acknowledged that

Mr. King's provocative behavior eventually subsided.

The Court recognizes that by the time the defendants’

conduct crossed the line to unlawfulness, Mr. King was

no longer resisting arrest. He posed no objective

threat, and the defendants had no reasonable perception

of danger.

Koon, 933 F. Supp. at 787. The court concluded that King's

wrongful conduct was “[t]he initial provocation for the

subsequent course of events,” that “the defendants’ early

perception of Mr. King as dangerous was reasonable,” and that

Tila

Koon and Powell “at least initially[] were invited to use force."

Id. at 786-87 (emphasis added). The court found that many of

the factors which are relevant in determining the extent of

departure under § 5K2.10—features which the district court also

viewed as relevant in deciding whether to depart at all, id., at

787 & n.13—weighed in favor of appellants with respect to

appellants’ initial, lawful conduct. But the court found that these

factors were no longer present when appellants’ conduct became

criminal. The court recognized that by the time Powell struck,

and Koon permitted to be struck, those blows for which

appellants were criminally liable, King no longer presented a

danger, no longer reasonably appeared to present a danger, and

was no longer persisting in misconduct. Jd. at 787; see

U.S.S.G. § 5K2.10(6)-(d).

The district court thus determined not that King's

misconduct “provoked” the offense conduct—the “provocative”

behavior had “subsided” before appellants committed their

criminal acts—but rather that “the incident would not have

escalated to this point, indeed it would not have occurred at all,

but for Mr. King's initial misconduct." Koon, 833 F. Supp. at

787. “But-for” causation, however, is not the proper analysis

under § 5K2.10. But-for causation is a much less demanding

standard than provocation; indeed, such a standard does not

require victim misconduct at all. By relying on the concept of

but-for causation, the district court implicitly recognized that

§ 5K2.10 does not apply, at least not in the usual sense.

After concluding that King's provocative behavior had

subsided before appellants committed the offense conduct, the

district court provided the following justification for the

departure:

Because the defendants were convicted of violation

of 18 U.S.C. § 242, Guideline Section 2H4.1 for

interference with civil rights under color of law, and

Guideline Section 2A2.2, for aggravated assault

linguistically apply. However, Mr. King's wrongdoing

and the substantial role it played in bringing about the

defendants’ unlawful conduct remove this case from the

“heartland” of offenses contemplated by the aggravated

72a

assault Guideline. See Guidelines, Ch. 1, Pt. A,

§ 4(b).

Messrs. Koon and Powell were convicted of

conduct which began as a legal use of force against a

resistant suspect and subsequently crossed the line to

unlawfulness, all in a matter of seconds, during the

course of a dynamic arrest situation. However, the

convicted offenses fall under the same Guideline

Sections that would apply to a jailor, correctional

officer, police officer or other state agent who

intentionaliy used a dangerous weapon to assault an

inmate, without legitimate cause to initiate a use of

force.

The two situations are clearly different. Police

officers are always armed with “dangerous weapons"

and may legitimately employ those weapons to

administer reasonable force. Where an officer's initial

use of force is provoked and lawful, the line between a

legal arrest and an unlawful deprivation of civil rights

within the aggravated assault Guideline is relatively

thin. The stringent aggravated assault Guideline, along

with its upward adjustments for use of a deadly weapon

and bodily injury, contemplates a range of offenses

involving deliberate and unprovoked assaultive

conduct. The Guidelines do not adequately account for

differences between such "heartland" offenses and the

case at hand.

The criminal conduct of a state officer who launches

an unprovoked assault on an individual in custody is

dissimilar to the conduct of defendants Koon and

Powell who, at least initially, were incited to use force.

Consistent with the policy of the Guidelines, the

sentence imposed must reflect this disparity.

Koon, 833 F. Supp. at 787.

The district court ultimately focused not on provocation

itself but rather on the volatility of the incident, and the close

proximity between, on the one hand, the victim's misconduct

and the officers’ concomitant lawful use of force, and, on the

other hand, the appellants’ unlawful use or authorization of the

use of force. We must determine whether this basis for

departure—as opposed to a more straightforward application of

§ 5K2.10—is legally permissible.

We begin by noting that in Graham v. Connor, the Supreme

Court, in formulating the test for the evaluation of excessive

force claims under the Fourth Amendment, recognized that

{t}he calculus of reasonableness must embody

allowance for the fact that police officers are often

forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary

in a particular situation.

490 U.S. at 396-97, 109 S.Ct. at 1872. Thus before a use of

force can be found excessive, the Graham “calculus,” embracing

the very factor which the district court found to be unusual in

this case—the “dynamic arrest situation""—has been taken into

consideration. The quoted language from Graham was included

in the jury instructions in this case, and was reiterated by the

government in closing. The incorporation of this consideration

into the basic fabric of the law in this area strongly suggests that

provocation by the victim in a situation where an officer must act

instantly is typical--not unusual.

This case differs in one respect from many of the cases in

which the Graham standard has been applied. The bulk of those

cases are civil. In this criminal prosecution, in addition to

proving that Powell used and Koon permitted officers under his

command to use excessive force, the government was required to

74a

The district court was troubled by the fact that U.S.S.G.

§ 2H1.4 applies both to excessive force cases of the Graham

variety and to cases in which a law enforcement or corrections

officer applies force which is unlawful from the beginning. The

district court saw the appellants’ lawful authority to use or allow

the use of some force, and what it perceived as the slenderness

of the line between legitimate and illegitimate force, as factors

partially exculpating appellants. Section 2H1.4, however,

adopts exactly the opposite approach. The guideline punishes

those vested with governmental authority more severely than

private actors who are guilty of comparable conduct: this is the

reason the guideline starts with the “underlying” offense and

then increases the offense level by 6. See U.S.S.G. § 2H1.4,

comment. (backg'd); see also U.S.S.G. §3B1.3, comment.

(backg'd). The fact that appellants were authorized to use some

force in this case does not mitigate the fact that they used too

much. Under the structure and policies of the Guidelines, it

makes it worse.

In a great many § 242 cases, the defendant has authority to

use appropriate force. The district court's rationale for

departure in this case was that here, due to the victim's

misconduct, the officers were legitimately called upon to use

force in this particular incident, and that the incident itself was

apply force to a victim than it does to the officer who crosses

that line as soon as he begins to hurt the victim. The

behind the guideline applies with equal or greater force in the

former case; the victim who is a wrongdoer is especially

vulnerable to abuses by officials, because the legitimate sway of

authority over him is greater to begin with. The structure of

§ 2H1.4 suggests that the slenderness of the line separating legal

from illegal uses of state power is a reason for victims, and for

75a

society, to be especially concerned. It cannot at the same time

be a reason to partially excuse those who transgress.37

As justification for the five-level departure, the district

court relied not only on the conclusion that appellants’ offense

conduct fell outside the heartland of § 2H1.4 cases, but also on

the conclusion that it fell outside the heartland of aggravated

assault cases (i.e., § 2A2.2). “The stringent aggravated assault

Guideline ... contemplates a range of offenses involving

deliberate and unprovoked assaultive conduct. The Guidelines

do not adequately account for differences between such

‘heartland’ offenses and the case at hand.” Koon, 833 F. Supp.

at 787. The district court thus drew an implicit contrast between

appellants and civilian offenders, noting that "Koon and Powell

did not seek out a victim; rather, their very presence at the scene

was a consequence of Mr. King's wrongful conduct.” Jd.

Similarly, the court noted that “[pjolice officers are always

armed with ‘dangerous weapons'"—thereby suggesting that

37 The fact that § 2H1.4, like § 242, encompasses different kinds and degrees

of misconduct is in itself insufficient to justify a downward departure. See

United States v. LeBlanc, 24 F.2d 340, 347 (ist Cir. 1994) (although moncy

laundering offenses which stem from prior unlawful activity of running an

illegal gambling business differ from the “classic” offense of laundering drug

money, downward departure is impermissible because the offense at issue falls

within the plain language of the statute and clearly was intended to be reached

by Congress.) Appellants’ conduct fell squarely within § 242; the statute

criminalizes the deprivation of all Constitutional rights. United States v. Price,

383 U.S. 787, 8003, 86 S. Ct. 1152, 1161, 16 L.Ed.2d 267 (1966) (discussing

legislative history). Hence “once a due process right has been made specific

by court decisions, that right is encompassed by § 242." United States v.

Langer, 958 F.2d 522, 524 (2d Cir. 1992) (internal quotation marks and

citations omitted). The rights King was deprived of have been clearly

established for decades, and willful conduct which deprived him of those nghts

falls within the heartland of both the statute and the Guidelines. The fact that

willful violators of the rights at issue in this case may not be prosecuted as

often as other violators of § 242 does not alter the analysis. In itself it says

nothing about individual culpability, although it may say something about

evidentiary difficulties and about the litigation strategies of the federal

government.

76a

application of the weapons enhancement may be unfair in a case

where the defendant is a police officer rather than a civilian. Jd.

But to depart because of a perception that this case falls

outside the heartland of aggravated assault cases again subverts

the structure of §2H1.4. That guideline explicitly enhances

sentences for official misconduct beyond those for civilian

misconduct. The Sentencing Commission cannot have been

blind to the fact that the circumstances out of which official

misconduct arises are different from the circumstances which

give rise to civilian misconduct. The Commission, in fact,

recognized those differences and used them as the basis for

harsher rather than more lenient punishment.

We conclude that the district court's rationale for departing

downward is flawed. The court isolated as unusual a factor

which is at the very heart of excessive force jurisprudence. The

court also adopted an approach toward official misconduct which

is antithetical to the approach embodied in the applicable

guideline. The five-level downward departure was not

justified .3%

3. Failure to Adjust Upward Four Points

for Serious Bodily Injury

The district court imposed a two-level upward adjustment

for bodily injury under U.S.S.G. § 2A2.2(b)(3)(A), rather than a

38 We do not conclude that a departure for victim misconduct would never be

permissible in a public case. Such a departure might be appropriate, where,

for example, the victim kills or wounds an officer's partner in his presence. In

such a case, victim misconduct plays a role similar to that played by

provocation in the more usual crimes of passion: the defendant is to a certain

extent excused because he was seized by passion, and acted in the heat of the

moment. This appears to have been the rationale in those cases where

departures under § 5K2.10 were affirmed. See United States v. Tsosie, 14

P.3d 1438 (10th Cir. 1994); United States v. Yellow Earrings, 891 F.2d 650

(8th Cir. 1989) (assaults triggered by sexual jealousy or humiliation). This is

distinguishable from the district court's rationale, which relies on the

vicissitudes of police work, and the difficulty in drawing the line between

proper and improper uses of force.

four-level adjustment for serious bodily injury under U.S.S.G.

§ 2A2.2(b)(3)(B). The government argues that the latter

adjustment is warranted by the blow, administered by Powell 43

seconds into the videotape, which fractured King's leg. The

district court acknowledged that this blow caused serious bodily

injury, but found that Powell was not acting criminally when he

delivered it.

As the government points out, the district court left it

unclear whether or not the blow in question constituted excessive

force: the court found that the blow “may have been tortious,”

833 F.Supp. at 778, but concluded that Powell was not

criminally liable for the blow, because the court was unable to

find that he had intended at that time to use excessive force.*?

Id. It is the latter conclusion which the government attacks on

appeal.

The district court supported its findings with the following

observations: (1) blows to the leg joints are within LAPD

policy, if necessary to aver

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