# Appendix — Koon v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1996
- **Citation:** 518 U.S. 81

## Text

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
|

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 constitut

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0596%3A03. Public record. Not legal advice.