Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-24-1997

United States v. Johnstone
Precedential or Non-Precedential:

Docket 95-5833




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                     UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                            _________________

                               NO. 95-5833
                            _________________

                        UNITED STATES OF AMERICA,
                                Appellee

                                     v.

                          RONALD JOHNSTONE,
                              Appellant
              _________________________________________

         On Appeal From the United States Court of Appeals
                  For the District of New Jersey
                      (D.C. No. 95-cr-00063-1)
            __________________________________________

                           Argued: June 5, 1996

            Before: BECKER, MANSMANN, Circuit Judges, and
                     SCHWARZER, District Judge.*

                        (Filed February 24, 1997)


GERALD KROVATIN, ESQUIRE (ARGUED)
DAVID W. FASSETT, ESQUIRE
Arseneault & Krovatin
560 Main Street
Chatham, New Jersey 07928

Attorneys for Appellant


DEVAL L. PATRICK, ESQUIRE
Assistant Attorney General


DAVID L. FLYNN, ESQUIRE
LINDA F. THOME, ESQUIRE
MICHELLE ARONOWITZ, ESQUIRE (ARGUED)
United States Department of Justice
Civil Rights Division
P.O. Box 66078
Washington, DC 20035-6078

     *
       Honorable William W Schwarzer, United States District Judge for the
Northern District of California, sitting by designation.




                                      1
FAITH S. HOCHBERG, ESQUIRE
United States Attorney
KEVIN McNULTY, ESQUIRE
Assistant United States Attorney
AMY S. WINKELMAN, ESQUIRE
Assistant United States Attorney
Office of the United States Attorney
970 Broad Street, Room 502
Newark, NJ 07102

Attorneys for Appellee


                _________________________________

                       OPINION OF THE COURT
               ___________________________________

BECKER, Circuit Judge.


          This appeal by Ronald Johnstone, a former municipal

police officer, in a federal criminal civil rights case, 18

U.S.C. § 242, requires us to consider the correctness of jury

instructions concerning the excessive force and intent elements

of that offense.    We must also determine the propriety of a

sentencing guideline enhancement for use of a dangerous weapon.1

For the reasons that follow, we will affirm.

                   I.   FACTS AND PROCEDURAL HISTORY
     1
      Johnstone’s appeal raises a number of other issues, but we
find patently without merit his contentions: (1) that the jury
instructions incorrectly stated that any bodily injury, no matter
how temporary, would sustain criminal liability; (2) that the
court impermissibly allowed the prosecution unilaterally to
dismiss a count it had emphasized in its opening; (3) that the
court improperly allowed into evidence the testimony of a lay
witness who described the state law standard for excessive force;
(4) that the court erred by admitting potentially prejudicial
testimony from a colleague of Johnstone who claimed that any
assaults carried out by Johnstone were covered up by his
superiors; (5) that, when it sentenced Johnstone, the court
incorrectly viewed evidence adduced at trial in the light most
favorable to the government; and (6) that the court inaccurately
applied the Sentencing Guidelines for aggravated assault, rather
than minor assault.



                                   2
            Johnstone and Richard Poplaski, former officers in the

Kearny, New Jersey Police Department, were charged in a nine-

count indictment with the use of excessive force in violation of

18 U.S.C. § 242.     Three of the counts involved allegations

against both Johnstone and Poplaski; six involved allegations

against only Johnstone.       Prior to and during trial, two counts

against Johnstone and two counts against Poplaski were dismissed,

leaving for the jury seven counts against Johnstone and one count

against Poplaski.     The jury convicted Johnstone of six of the

remaining seven counts against him and acquitted Poplaski of the

only remaining count against him.          The district court sentenced

Johnstone to 87 months in prison and imposed a fine.

            Central to a number of Johnstone's arguments are the

facts underlying the conviction.          Of particular importance are

the timing of the force and the type of force used.            Therefore,

we will briefly describe each of the instances for which

Johnstone was convicted, viewing the evidence presented at trial

in the light most favorable to the government.2

                      A.   Austin Burke (Count VII)

            On February 14, 1990, Johnstone and a fellow officer

stopped two men on the street whom they suspected of car theft.

Johnstone seized one of the men, Austin Burke, handcuffed him,

and threw him against the hood of the patrol car.            Johnstone, who

     2
      As we will describe below, however, the order of events underlying these
convictions -- in particular, whether the
assaults occurred before or after Johnstone handcuffed the
victims -- is not crucial to resolving the legal questions at
issue. See infra part II.




                                      3
is six-foot three inches and three hundred pounds, then pushed

him against the car several more times, and punched him on the

body.   While putting Burke in the patrol car, Johnstone thrust

his head against its roof.

                        B.   John Blevins (Count IV)

           The jury convicted Johnstone for his role in the arrest

of John Blevins.    On May 14, 1990, Blevins was waiting on a

street corner after attending a house party.       Johnstone and

several other Kearny police officers, responding to a complaint

about noise, arrived at the scene.       Blevins became disorderly,

and one of the other officers started to struggle with him while

attempting to place him under arrest.       Johnstone observed the

struggle and moved in to assist the other officer.          After other

officers had handcuffed Blevins and forced him to lie on the

ground, Johnstone kicked him in the mouth and chest.

                   C.    Peter Sudziarski (Count III)

           The jury also convicted Johnstone of employing

excessive force against Peter Sudziarski.       On September 19, 1990,

Johnstone and Poplaski stopped Sudziarski and a friend, who were

driving in a stolen car.       Sudziarski fled on foot, but was

promptly apprehended and handcuffed.       His friend evaded

apprehension.   Immediately after handcuffing Sudziarski, one of

the officers (it was not clear whether it was Johnstone or

Poplaski) kicked him in the back of the head.          Later, upon

walking Sudziarski to the patrol car, Johnstone struck him in the

head and chest with his flashlight when Sudziarski refused to

reveal his accomplice’s name.       Johnstone placed Sudziarski in the


                                     4
patrol car and again asked for his accomplice’s name.          When

Sudziarski refused to answer, Johnstone hit him across the face

with his flashlight.

                  D.    Michael Perez (Counts V & VI)

             Johnstone was convicted of twice using excessive force

against Michael Perez on July 5, 1991.         Perez and five friends

were returning to Kearny from a Fourth of July celebration in

Jersey City when two of his friends got into a fight.          When the

police arrived at the scene, Johnstone told Perez that he was

under arrest, and he and several officers walked Perez to his

squad car.     Then, while attempting to handcuff Perez, Johnstone

struck him on the back of his head with a flashlight.

             Perez and Johnstone exchanged words in the patrol car

during the trip to the Kearny police station.           Upon arriving at

the station house garage, Johnstone pulled Perez out of the car,

and beat him, punching and kicking him in the head and on the

body.   It was disputed at trial whether Perez remained handcuffed

at that time.

                       E.    Robert Burden (Count IX)

             The last incident occurred on September 1, 1991.

Robert Burden came out of a bar and discovered that the police

had arrested his son.        He tried to glean some information about

the arrest from police officers at the scene, but was told by

Johnstone to leave.         He returned to the bar.   Shortly thereafter,

Johnstone followed him into the bar.         Upon finding him, Johnstone

pulled Burden off his bar stool, threw him against a video

machine and against the wall, pushed him to the floor, and kicked


                                      5
him.       Johnstone then handcuffed Burden and took him away.

               The district court exercised jurisdiction over the

criminal case pursuant to 18 U.S.C. § 3231; we exercise appellate

jurisdiction over the judgment of conviction and sentence

pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

             II.   JURY INSTRUCTIONS REGARDING EXCESSIVE FORCE

               We address first Johnstone’s challenge to the jury

instructions regarding excessive force.          In reviewing whether a

district court in its charge to the jury correctly stated the

appropriate legal standard, our review is plenary.            See, e.g.,

United States v. Coyle, 

, 1245 (3d Cir. 1995).3        A

jury charge must clearly articulate the relevant legal standards.

 See, e.g., United States v. Schneider, 

, 881 (3d Cir.

1994).       It must, therefore, be structured in such a way as to

avoid confusing or misleading the jury.          See, e.g., United States

v. Messerlian, 

, 789 (3d Cir. 1987).            To ensure that

the district court met this requirement, we must examine the

charge in its entirety and not limit ourselves to particular

sentences or paragraphs in isolation.         See, e.g., 

.4
       3
      Johnstone is not challenging the precise language of the charge;
instead, he is arguing that the district court articulated the improper legal
standard in the charge. Were we to review the particular language employed by
the district court
in its charge, our review would be for abuse of discretion. See, e.g., United
States v. Messerlian, 

, 789 (3d Cir. 1987).

       4
      Johnstone did not object to the jury charge in the district court, and
so we can reverse in his favor only if any error made by the district court
was “plain.” United States v. Zehrbach, 

, 1260 n.6 (3d Cir.) (en
banc), cert. denied, 

(1995) (“Where a party has not made a
clear, specific objection to the charge that he alleges is erroneous at trial,
he waives the issue on appeal ‘unless the error was so fundamental and highly



                                      6
            The district court charged the jury as follows: “If you

find, as to the particular count under consideration that a

defendant used force, you should consider whether the force used

by him was reasonable or whether it was greater than the force

which would have been reasonably necessary under the

circumstances to an ordinary and reasonable officer on the

scene.”   Johnstone contends that the district court erred in

charging the jury under a Fourth Amendment “objective

reasonableness” standard rather than a due process standard

because the force that he used against Sudziarski, Perez, and

Blevins -- the conduct underlying four counts of his conviction -

- occurred after their “lawful restraint and arrest.”

            In Graham v. Connor, 

(1989), the Supreme

Court established the constitutional standard that governs claims

that excessive force was employed during the course of an arrest.

 According to the Court, “all claims that law enforcement

officers have used excessive force -- deadly or not -- in the

course of an arrest, investigatory stop, or other ‘seizure’ of a

free citizen should be analyzed under the Fourth Amendment and

its ‘reasonableness’ standard, rather than under a ‘substantive

due process’ approach.”       

   The Court held that this

Fourth Amendment “‘reasonableness’ inquiry in an excessive force

case is an objective one: the question is whether the officers’

actions are ‘objectively reasonable’ in light of the facts and

prejudicial as to constitute plain error.’” (quoting Bennis v. Gable, 

, 727 (3d Cir. 1987)). Because we
conclude that the district court did not err in its instructions, we need not
reach the plain error question.




                                      7
circumstances confronting them, without regard to their

underlying intent or motivation.”   

          While the Graham Court explained that the Fourth

Amendment reasonableness standard governs claims of excessive

force during arrest, the Court acknowledged: “Our cases have not

resolved the question whether the Fourth Amendment continues to

provide individuals with protection against the deliberate use of

excessive physical force beyond the point at which arrest ends

and pretrial detention begins, and we do not attempt to answer

that question today.”   

n.10.   Nor did the Court in

Graham precisely determine the particular point at which the

“seizure” ends and the pre-trial detention begins, identifying

neither a point in time, nor a place, e.g., the station house,

that might suffice.   The Court instead relied on its prior cases

in which it had defined a “seizure” to occur when law enforcement

officials have “by means of physical force or show of authority .

. . in some way restrained the liberty of a citizen.”    Terry v.

Ohio, 

, 19 n.16 (1968); see also Brower v. County of

Inyo, 

, 597 (1989) (seizure occurs “when there is a

governmental termination of freedom of movement through means
intentionally applied”).

          Johnstone contends that the district court erred in

instructing the jury to consider the excessive force claims under

the Graham objective reasonableness standard.     According to

Johnstone, Graham only governs claims that excessive force was

carried out during the course of an arrest.     Because Sudziarski,

Perez, and Blevins were already handcuffed when they were


                                8
assaulted, the argument continues, those assaults took place

after, not during, the arrests, hence, Graham does not govern

those counts.   Johnstone then argues that his conduct, which

falls into the “gray” area about which the Graham Court

explicitly reserved decision, should be weighed under a

Fourteenth Amendment substantive due process standard.     Thus,

Johnstone submits, the jury should have been instructed as to

whether the force used against those three victims was excessive

under a substantive due process “shocks the conscience” analysis,

or, at a minimum, should have been instructed about both

constitutional standards, and the specific facts that would

trigger the application of each standard.

          We disagree.   Without deciding where an arrest ends and

pretrial detention begins, we conclude, for the reasons that

follow, that the excessive force committed by Johnstone took

place during the arrests of Sudziarski, Perez, and Blevins, even

if those victims were in handcuffs.    Therefore, the district

court correctly instructed the jury with a Fourth Amendment

objective reasonableness standard.     Moreover, we believe that

this case is squarely controlled by Graham, as the force at issue
in that case took place in a similar factual context.

          In Graham, police officers stopped Graham’s car,

suspecting him of criminal activity.    Suffering from an insulin

reaction, Graham emerged from his car, ran around it twice, sat

down on the curb, and then passed out briefly.     An officer

handcuffed him, and several officers then carried him to the car,

placing him face down on the hood.     When he regained


                                9
consciousness, one of the officers shoved him (face down) against

the hood, and then four of the officers threw him head first into

the car.    

.   In holding that the Fourth

Amendment governed that case, the Graham Court implicitly held

that an arrest is a continuing event that does not end as soon as

a suspect is first restrained.    Moreover, because Graham was

handcuffed at the time of his assault, Graham shows that

handcuffing is not necessarily the point at which a seizure ends

for purposes of the application of the Fourth Amendment.

            We believe that the facts of Graham are nearly

identical to those that we face in the case at bar.     Leaving

aside for a moment the assault on Perez in the station house

garage, each of the attacks against Perez and Blevins, and most

of the attacks against Sudziarski took place outside the patrol

car after the suspects had been handcuffed, just as the force in

Graham had been employed.   Johnstone also struck Sudziarski with

the flashlight in the patrol car, but the placement of a suspect

in a squad car does not necessarily signal the end of an arrest.

 Johnstone persisted in the same conduct both before and after

putting Sudziarski in the car: Johnstone questioned him, and when

Sudziarski refused to reveal his accomplice’s name, Johnstone

struck him.

            We acknowledge that Johnstone’s assault on Perez in the

police station garage, after he had been transported from the

scene of the initial beating, is the most troubling in this

regard.    That assault was the closest -- both temporally and

spatially -- to pre-trial detention at the station house.     We


                                 10
conclude, however, that the assault in the station house garage

also occurred during the course of Perez’s arrest.    In so doing,

we are constrained by our holding in Groman v. Township of

Manalapan, 

(3d Cir. 1995), a civil case, 42 U.S.C. §

1983, in which we held that a beating that took place when a

suspect was removed from the police car at the station house was

governed by the Fourth Amendment.     We perceive no difference

between a civil and criminal case in terms of the applicable

standard.

            In Groman, we reversed the grant of summary judgment

because we found that there were material facts in dispute as to

whether the defendants had violated Groman’s Fourth Amendment

right to be free from excessive force.    Police officers were

called to Groman’s home because he had apparently suffered a

minor stroke.   According to Groman, one of the officers struck

him in the mouth.   After a brief struggle, the officers placed

Groman in handcuffs, and then took him to the police car.    During

the transfer to the squad car, he sustained an injury to his face

and lost his dentures.   When they arrived at the station, Groman

testified, the police officers dragged him from the car feet

first, so that his head hit the ground.    After picking him up,

one of the officers stomped on his toe, allowed him to fall, and

an officer jumped on him.   

.   We believe

that the facts of Groman are nearly identical to those

surrounding the beating of Perez in the station house garage, and

we are thus bound by Groman to find that Perez’s assault took
place during the course of the arrest, even though he had already



                                 11
been transported to the station house.

            United States v. Messerlian, 

(3d Cir.

1987), on which Johnstone relies to support his contention that

the jury should have been instructed with a Fourteenth Amendment

standard, does not undermine this conclusion.           In Messerlian,

which involved post-handcuffing force employed in the squad car

against a drunk-driving suspect, we upheld a conviction where the

jury was instructed under a Fourteenth Amendment due process

analysis.    

& 790 n.20.       We find Johnstone’s reliance

on Messerlian to be unpersuasive, for two reasons.            First, it was

decided before Graham.      Since Graham applies to force employed

after a suspect is first restrained or handcuffed, Messerlian

clearly falls into an area that is controlled by Graham.             Thus,

the due process jury charge upheld in Messerlian has not survived

Graham.   Second, although the instructions in Messerlian were

clearly grounded on the Fourteenth Amendment, the instructions

there did not include the “shocks the conscience” standard, which

Johnstone urges us to employ.        Rather, the instructions closely

resembled the Fourth Amendment objective reasonableness

instructions presented to the jury in this case.            

(force violates a constitutional right if it is “excessive,

unreasonable, and unnecessary”).5
     5
      Though decided after Graham, Fagan v. City of Vineland, 

(3d
Cir. 1994) (en banc), is also inapposite. Fagan involved a high speed police
chase, and the question whether there had been a seizure accordingly was not
raised. See In re City of Philadelphia Litig., 

, 964 (3d Cir.)
(Greenberg, J., opinion announcing the judgment of the court) (“[N]ot a single
member of our . . . court in Fagan suggested that the proper analysis in that
case should have centered on the Fourth Amendment protection against
unreasonable seizures.”), cert. denied, 

(1995). The "shocks
the conscience" standard has been employed in other high speed police car



                                     12
            In holding that Johnstone carried out each of the

assaults during the course of arrest, we observe that a “seizure”

can be a process, a kind of continuum, and is not necessarily a

discrete moment of initial restraint.         Graham shows us that a

citizen can remain “free” for Fourth Amendment purposes for some

time after he or she is stopped by police and even handcuffed.

Hence, pre-trial detention does not necessarily begin the moment

that a suspect is not free to leave; rather, the seizure can

continue and the Fourth Amendment protection against unreasonable

seizures can apply beyond that point.

            Where the seizure ends and pre-trial detention begins

is a difficult question.       While it does seem problematic for a

constitutional standard to change at some particular moment

during an encounter between a citizen and a law enforcement

official, as such encounters can be highly volatile, we need not

draw this line here, because Johnstone’s conduct would fall

squarely onto the seizure side of any line we would draw.             Nor

need we decide whether the Fourth Amendment protection against

unreasonable seizures extends beyond that line.           We therefore

conclude that the district court did not err in its jury

instructions concerning excessive force.6

chase cases since. Cf. Kneipp v. Tedder, 

, 1207 (3d Cir. 1996)
(“We believe that the Fagan II shocks the conscience standard is limited to
police pursuit cases . . . .”).

     6
      Johnstone makes two related contentions. First, he claims that the
district court erroneously failed to charge the jury that the use of force
must violate New Jersey state law for such force to constitute a
constitutional violation. To support this argument, he relies on Messerlian
and United States v. Dise, 

(3d Cir. 1985). We disagree. To be
sure, in those cases this Court upheld jury instructions that referred to
state law. But those cases were decided before Graham. As we have explained,



                                     13
            III.   JURY INSTRUCTIONS REGARDING THE INTENT

                       ELEMENT OF 18 U.S.C. § 242

            Johnstone contends that the jury charge incorrectly

defined the intent element of the crime for which the jury

ultimately convicted him.       In evaluating this contention, we must

first set forth the appropriate legal standard.           The statute

reads, in relevant part, as follows:
 Whoever, under color of any law, statute, ordinance, regulation,
          or custom, willfully subjects any person in any State,
          Territory, or District to the deprivation of any
          rights, privileges, or immunities secured or protected
          by the Constitution or laws of the United States . . .
          shall be fined under this title, or imprisoned, . . .
          or both . . . .


18 U.S.C. § 242.     As is clear from the statute, the requisite


the jury in the case at bar was properly instructed under the Fourth Amendment
objective reasonableness standard, and whether a defendant violated state law
is not relevant to that determination.
            Second, Johnstone argues that the district court constructively
amended the indictment by charging the jury that the Fourth Amendment
objective reasonableness standard governed each count, when the indictment
charged him with depriving his victims of their right to due process. He
contends that he was denied his Fifth Amendment grand jury right because the
district
Court “broaden[ed] the possible bases for conviction from that which appeared
in the indictment,” United States v. Miller, 

, 138 (1985), thus
effectively trying him on charges for which he was not indicted. Again, we
disagree. The indictment alleged as to each count that Johnstone deprived the
victim of the “right secured and protected by the Constitution and laws of the
United States not to be deprived of liberty without due process of law, which
includes the right to be secure in his person and free from the use of
unreasonable force by one acting under color of law.” We find this language
sufficient to charge a violation of the Fourth Amendment as made applicable to
the states through the Fourteenth Amendment due process clause, and therefore
the notice and double jeopardy functions of the
indictment were satisfied. An indictment is constructively amended only when
the defendant is deprived of his “substantial
right to be tried only on charges presented in an indictment returned by a
grand jury.” 

(quoting Stirone v. United States, 

, 217 (1960)); see also United States v. Castro, 

, 1122-
23 (3d Cir. 1985). That has not occurred here. See also United States v.
Reese, 

, 890-91 (9th Cir. 1993) (holding that there was no
constructive amendment of indictment in similar case).




                                     14
intent required therein is "willful[]."          The statute, however,

goes no further in explaining the meaning of that intent.

                         A.   The Screws Standard

            In the celebrated case of Screws v. United States, 

(1945), the Supreme Court had occasion to interpret the

meaning of willful in the predecessor statute to § 242.7             It is

not enough, the Court noted, for the defendant to exhibit "a bad

purpose or evil intent."       

see also 

Instead, the Court declared that willfulness requires "a specific

intent to deprive a person of a federal right made definite by

decision or other rule of law . . . ."          

see also 

   Screws also requires the violation of a particular

right.    Clearly, the government has alleged such a violation in

this case.    As we discussed more 

, that right is the

right to be free from the use of excessive force.
     7
      As quoted in Screws, the text of the predecessor statute reads in
relevant part as follows:

Whoever, under color of any law, statute, ordinance, regulation, or custom,
            willfully subjects, or causes to be subjected, any inhabitant of
            any State, Territory,
or District to the deprivation of any rights, privileges, or immunities
secured or protected by the Constitution and laws of the United States . . .
shall be fined . . . or imprisoned . . . or both.

. Neither party suggests, nor do we believe, that the
slight differences between the predecessor statute and that before us now
warrant an interpretation of "willfully" different from that provided it by
Screws.

     8
      The opinion in Screws could muster only a plurality. However,
subsequent decisions of the Supreme Court have treated the reasoning with
respect to the intent element of the statute as binding. See, e.g., Anderson
v. United States, 

,
223 (1974); United States v. Guest, 

, 753-54 (1966); Williams v.
United States, 

, 81-82 (1951). Cases in this Circuit have treated
Screws similarly. See United States v. Messerlian, 

, 790 (3d Cir.
1987); United States v. Dise, 

, 591-92 (3d Cir. 1985).



                                     15
            It is not necessary, however, for the government to

prove that the defendant was "thinking in constitutional terms

[provided that the defendant's] aim was not to enforce local law

but to deprive a citizen of a right and that right was protected

by the Constitution."      

    The Court reconciles these

facially inconsistent standards -- that an individual can intend

to violate a right even if the individual is not thinking in

terms of any right -- by recognizing that willfulness includes

reckless disregard.      See 

("When they act willfully in

the sense in which we use the word, they act in open defiance or

in reckless disregard of a constitutional requirement which has

been made specific and definite."); see also United States v.

Messerlian, 

, 791 (3d Cir. 1987); United States v.

Dise, 

, 592 (3d Cir. 1985).9          Finally, Screws held

that willfulness can be shown by circumstantial evidence.             See

; see also 

.
     9
      Although Johnstone does not raise this argument in terms, the tenor of
his challenge suggests that he would claim that § 242 requires that Johnstone
knowingly violate federal law. Screws clearly forecloses such an argument,
however, when it states that a defendant need not be "thinking in
constitutional terms" in order to be convicted of violating § 242. 

. Screws is therefore in line with the characterization of
reckless disregard in other contexts in which reckless disregard is contrasted
with and set apart from actual knowledge. See, e.g., Trans World Airlines,
Inc. v. Thurston, 

, 125-130 (1985) (interpreting a provision in
the Age Discrimination in Employment Act and differentiating between knowledge
and reckless disregard).
      Moreover, reckless disregard often entails some form of indifference.
See, e.g., Black's Law Dictionary 1270 (6th ed. 1990) ("For conduct to be
'reckless' it must be such as to evince disregard of, or indifference to,
consequences . . . ."). In common parlance, for an individual to be
indifferent, he must not be concerned "one way or the other" about the
consequences of his action. Webster's Third New International Dictionary 1151
(1966). A requirement that an individual know the consequences of his action
is not antithetical to this definition of indifference, but it would introduce
an additional element beyond lack of concern.




                                     16
            As is evident from the text, and has oft been noted,

Screws is not a model of clarity.10        Some of the sentences

therein, examined in isolation, resist easy explanation and can

be reconciled only by way of tortuous logic.           Our task, however,

is to read these sentences in light of the text of Screws in its

entirety.     The plurality in Screws believed its pronouncements to

be consistent; we must do the same.

            In simpler terms, "willful[]" in § 242 means either

particular purpose or reckless disregard.          Therefore, it is

enough to trigger § 242 liability if it can be proved -- by

circumstantial evidence or otherwise -- that a defendant

exhibited reckless disregard for a constitutional or federal

right.    Reckless disregard has different meanings in different

contexts.11    In the context of § 242, we have only Screws to
     10
      For a more detailed discussion of Screws's somewhat opaque
interpretation of "willfulness," see Frederick M. Lawrence, Civil Rights and
Criminal Wrongs: The Mens Rea of Federal Civil Rights
Crimes, 67 Tul. L. Rev. 2113, 2180-86 (1993).

     11
      In Farmer v. Brennan, 

(1994), the Supreme Court, in the
course of defining "deliberate indifference," discussed the different meanings
of reckless disregard. The Court noted that in the civil context reckless
disregard generally entails an objective analysis; an individual exhibits
reckless disregard if he is indifferent to a risk "that is either
known or so obvious that it should be known." 

By contrast, in
the criminal context, reckless disregard generally requires a subjective
analysis; a criminal defendant exhibits reckless disregard if he is
indifferent to a risk "of which he is aware." 

Later in its
discussion, the Court
implied, at least in dicta, that reference to background criminal law is
proper in understanding § 242. See 

n.7 ("Appropriate allusions to
the criminal law would, of course, be proper during criminal prosecutions
under, for example, 18 U.S.C. § 242, which sets criminal penalties for
deprivations of rights
under color of law."). Such a reference suggests that the reckless disregard
standard of § 242 is subjective. In 

, we seemed to agree, stating that a defendant is potentially criminally
liable under § 242 "if he acted in
reckless disregard of the law as he understood it." 

                                     17
guide us.12

            In sum, as is evident from the passages quoted above,

Screws is less than satisfying in its attempt to reconcile its

internally inconsistent mandates.         Unfortunately, any further

attempt to explain the appropriate meaning of reckless disregard

to a jury would probably either do violence to Screws or inject

additional confusion into the standard that it announces; hence

we eschew such explanation.       Fortunately, such explanation is

unnecessary for, given the Screws standard as it now stands, we

easily conclude that the jury charge as to intent was

permissible.

                    B.   Validity of the Jury Charge

            The relevant language of the charge follows:
            The fourth element which the United States must prove

(emphasis added). Screws gives no indication as to which definition,
objective or subjective, is correct. We do not reach the question here
because it is obvious that Johnstone, a trained police officer, was aware that
federal and state law
(recall that Johnstone was employed by a municipal police department that
operated under state law) set boundaries within
which the use of force is permissible and was surely aware that any use of
force presented some risk of falling outside those
boundaries.

     12
      Courts have looked to three Supreme Court cases decided subsequent to
Screws for assistance in defining the intent requirement of § 242. None,
however, are very helpful in furthering our present undertaking. In Williams
v. United States, 

(1951), for example, the Court assumed -- with
little discussion -- that police who beat a confession out of a suspect "acted
willfully and purposely; their aim was precisely to deny the protection that
the Constitution affords." See 

In United States v. Guest, 

(1966) and Anderson v. United States, 

(1974), the
underlying offense was a conspiracy, prohibited under § 241. See

; 

. The gravamen of any
conspiracy charge -- including a charge under §
241 -- was stated to be the specific intent to achieve an illegal objective.
See 

; Anderson at 223; 

(Douglas, J., dissenting). Neither Guest nor Anderson provide guidance
with respect to the definition of reckless disregard.




                                     18
           beyond a reasonable doubt is that as to the count under
           consideration the defendant acted willfully. I
           instruct you that an act is done willfully if it is
           done voluntarily and intentionally, and with a specific
           intent to do something the law forbids, that is, as
           relevant here, with an intent to violate a protected
           right. Knowledge and intent exist in the mind. Since
           it is not possible to look into a person's mind to see
           what went on, you must take into consideration all the
           facts and circumstances shown by the evidence and
           determine from all such facts and circumstances whether
           the requisite knowledge and intent were present at the
           time in question.
           Knowledge and intent may be inferred from all the
           surrounding circumstances. You may infer, for example,
           that a person ordinarily intends all the natural and
           probable consequences of an act knowingly done. In
           other words, you may infer that a defendant intended
           all the consequences that a person standing in like
           circumstances and possessing like knowledge should have
           expected to result from his acts knowingly done.
           You are not, of course, required to so infer. It is
           not necessary for you to find that a defendant was
           thinking in constitutional terms at the time of the
           conduct in question. 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, here the right to be free from the use
           of unreasonable or excessive force, provided that you
           find that the defendant intended to accomplish that
           which the constitution forbids. Nor does it matter
           that a defendant may have also been motivated by
           hatred, anger or revenge, or some other emotion,
           provided that the specific intent which I have
           described to you is present.


           We find nothing in the language of the charge that is

contrary to the appropriate legal standard of § 242 as

interpreted by Screws.   Though the charge may not be crystal

clear, any confusion is a result of Screws itself and not of the

charge.   The district court explained the appropriate legal

standard, such as it is, as well as that standard could be

explained.

           Johnstone, however, submits that the district court was



                                19
required to charge the jury that it could find him guilty only if

it found that he knowingly violated state law prohibitions

against excessive force.   We disagree.    As we have explained, the

underlying right Johnstone was alleged to have violated was a

Fourth Amendment right.    Therefore, it is the Constitution itself

that defines the standard for excessive force.     

note 6.

 State law is simply of no consequence.

          Neither is Dise nor Messerlian on point in this regard,

notwithstanding the pronouncement in Dise that a knowing

violation of state law demonstrates reckless disregard for

constitutional rights, see 

, and the fact

that Messerlian approved jury instructions requiring that the

defendant knowingly violate state law, see 

, 791.   Even assuming that state law were relevant, nothing

in Dise nor Messerlian requires a knowing violation of state law;

they merely "hold that when a person acting under color of state

law invades the personal liberty of another, knowing that such

invasion is in violation of state law, he has demonstrated bad

faith and reckless disregard for constitutional rights."     

.   That holding in no way forecloses the

possibility that a defendant has acted in reckless disregard for

constitutional rights without knowingly violating state law.

                            C.   Summary

          In sum, to convict a defendant under § 242, the

government must show that the defendant had the particular

purpose of violating a protected right made definite by rule of

law or recklessly disregarded the risk that he would violate such


                                 20
a right.    The government does not need to show that the defendant

knowingly violated any right.        We conclude that, in this case,

the district court properly explained this standard to the jury.
             IV. GUIDELINE ENHANCEMENT FOR USE OF A

                             DANGEROUS WEAPON

            We turn finally to Johnstone’s challenge to the four-

point enhancement to his base offense level under §

2A2.2(b)(2)(B) of the Sentencing Guidelines.           Our review of the

district court's interpretation of the Sentencing Guidelines is

plenary.    United States v. Mobley, 

, 451-52 (3d Cir.

1992).     The court applied this enhancement in connection with the

aggravated assaults on Sudziarski and Perez.           Johnstone contends

that, in so doing, the district court engaged in impermissible

double counting.     This is so, Johnstone claims, because the

district court enhanced his offense level to reflect that “a

dangerous weapon was otherwise used,” after it had classified the

conduct underlying the convictions as “aggravated assault” within

the meaning of § 2A2.2 because the offenses “involved” a

dangerous weapon.

             Section 2A2.2 provides the framework for calculating

the offense levels for aggravated assault.          It sets a base

offense level of fifteen for aggravated assault, which the

comment defines as “a felonious assault that involved . . . a

dangerous weapon with intent to do bodily harm.” 1994 U.S.S.G. §

2A2.2, commentary, application note 1.13         Once a court has
     13
      The commentary also defines aggravated assault to include those
assaults “that involved . . . serious bodily injury, or . . . an intent to
commit another felony.” 1994 U.S.S.G. § 2A2.2,
commentary, application note 1.



                                     21
determined that the aggravated assault, rather than the minor

assault, guideline applies, § 2A2.2 requires graduated increases

in the base offense level if the offense involves certain

specific offense characteristics.      Section 2A2.2(b)(2), for

example, provides for incremental enhancements that reflect the

relative level of involvement of a dangerous weapon in the

commission of the offense.   If a firearm was discharged, the

district court is directed to increase the base offense level by

5.   See 

  If a dangerous weapon was

“otherwise used” in the commission of the offense, the base

offense level must be increased by 4 levels.     See 

  And if the dangerous weapon was “brandished or

its use was threatened,” the court must increase the offender’s

base offense level by 3. See 

          Turning to the district court’s calculation of

Johnstone’s sentence, the guideline for the substantive offense

that most closely resembled the conduct underlying Johnstone’s

civil rights conviction, assault, was used to calculate

Johnstone’s base offense level.    For the convictions for the

assaults on Sudziarski and Perez, the court found that the

aggravated assault guideline applied, because a dangerous weapon

-- a flashlight -- was “involved” in the offenses.     Accordingly,

it set the base offense level for those counts at 15.     The court

then found that the dangerous weapon -- the flashlight -- had

been “otherwise used” in the assaults, and increased the offense

level by four levels under § 2A2.2(b)(2)(B).

          Johnstone contends that the district court engaged in


                                  22
impermissible double counting when it enhanced his offense level

four points under § 2A2.2(b)(2)(B).    He complains that the

flashlight, a “dangerous weapon,” was the basis of the

application of the aggravated assault guideline because it was

“involved” in the offense, and then was used again to enhance the

offense level because this same “dangerous weapon” was “otherwise

used” to commit the assault.   Johnstone concedes that the four-

level enhancement would not be double counting in all cases: for

example, if a knife, an inherently dangerous weapon, was involved

in the offense, it would not be double counting to enhance a

defendant’s offense level if that knife was actually used in the

course of the assault.   But he contends that the enhancement is

impermissible in a case such as this in which the weapon is not

inherently dangerous, but rather is a “dangerous weapon” that is

“involved” in the offense, triggering the aggravated assault

guideline, solely because of how it is used in the assault.

          In other words, Johnstone’s use of the flashlight was

counted twice in calculating his sentence because it was the

basis of both the application of the aggravated assault provision

and the four-point enhancement.    In so arguing, Johnstone relies

on United States v. Hudson, 

(2d Cir. 1992), and

United States v. Hernandez-Fundora, 

(2d Cir.), cert.

denied, 

(1995), in which the Court of Appeals for

the Second Circuit held that “while the Sentencing Guidelines

provide a logical framework for assaults involving inherently

dangerous weapons, the Guidelines proscribe impermissible double

counting where it is the use of an ordinary object as dangerous


                                  23
weapon that transforms a ‘minor’ assault into an ‘aggravated’

one.”    

.

            We disagree, for several reasons.   In so doing, we note

that we follow the majority of circuits that have considered this

issue.    See United States v. Dunnaway, 

, 619 (8th Cir.

1996) (boots and bottle used as weapons); United States v.

Sorensen, 

, 1160-61 (7th Cir. 1995) (concrete block

used as weapon); United States v. Garcia, 

, 11-12 (1st

Cir. 1994) (car used as weapon); United States v. Reese, 

, 894-96 & n.32 (9th Cir. 1993); United States v. Williams,

, 205-08 (4th Cir. 1992) (use of a metal chair); see

also United States v. Newman, 

, 672-75 (1st Cir.

1992) (similar enhancement under §2A2.2(b)(3) for serious bodily

injury held not to be impermissible double counting).    The Second

Circuit is the only circuit to have held that applying

§2A2.2(b)(3)(B) can constitute double counting.

            We begin with the observation that the four-point

enhancement where a dangerous weapon is “otherwise used” is not

double counting.   The aggravated assault provision and the

specific enhancements for the relative level of involvement of a

dangerous weapon account for different aspects of an assault.

The aggravated assault guideline is triggered if the conduct

“involved a dangerous weapon with intent to do bodily harm”: the

court must apply it if a dangerous weapon was involved in an

assault in any capacity so long as the offender had the intent to

do serious bodily harm with that weapon.    By contrast, the

specific offense characteristic enhancements, including the


                                    24
enhancement for use of a dangerous weapon that is at issue here,

deal with the relative level of involvement of that dangerous

weapon in the offense.     Because the first provision accounts for

any type of involvement of a dangerous weapon in an assault if

the defendant had the requisite intent, and the second accounts

for the specific type of involvement of that weapon, the

provisions deal with different conduct and hence there is no

double counting.

             We are not persuaded that this conclusion is any less

true when the weapon is an ordinary object, such as the large

flashlight used by Johnstone in the assaults against Sudziarski

and Perez.     There is no basis in the Guidelines or in the

commentary for distinguishing between ordinary objects and

inherently dangerous weapons.     Moreover, the Guidelines consider

a “dangerous weapon” to be “an instrument capable of inflicting

death or serious bodily injury.”       1994 U.S.S.G. § 1B1.1,

commentary, application note 1(d).      Ordinary objects, such as

large flashlights, are clearly “capable” of inflicting death or

serious bodily injury without being employed, and hence they

clearly fall within the definition of aggravated assault even if

they are not actually used in the offense.      Thus, such an object

could be “involved” in an offense, triggering the aggravated

assault guideline, even if it is not “otherwise used” in the

offense.

             But even if the four-level enhancement for the use of a

deadly weapon might in some cases, including this one, constitute

“double counting,” this double counting is permissible because it


                                  25
is explicitly mandated by the clear and unambiguous language of §

2A2.2.   

pp.22-23.   A court must make all applicable,

mandatory adjustments unless the Guidelines specifically exempt

the particular conduct at issue.      See 

(“Determine

the base offense level and apply any appropriate specific offense

characteristics contained in the particular guideline in Chapter

Two . . . .”).

          We have held that a court must follow this rule even if

it would lead to counting a particular factor twice in

calculating a defendant’s sentence.     We addressed the

permissibility of double counting under the Guidelines in United

States v. Wong, 

(3d Cir. 1993).      See also United

States v. Maurello, 

, 1315-16 (3d Cir. 1996).         In

those cases, we noted that the Sentencing Commission was aware of

the potential for double counting inherent in some of the

provisions, and that, accordingly, the Guidelines specifically

forbid double counting in certain, enumerated circumstances.           For

example, the commentary to §§ 3A1.1, 3A1.2, and 3A1.3 states

explicitly that victim-related enhancements based on certain

conduct are not permitted if the applicable offense guideline

already accounts for the same conduct.     See 

.
 Based on this understanding, we held that:
the principle of statutory construction, expressio unius est
          exclusio alterius applies. Following these principles,
          we conclude that the exclusion of a double counting
          provision in the [certain] sections . . . was by
          design. Accordingly, an adjustment that clearly
          applies to the conduct of an offense must be imposed
          unless the Guidelines exclude its applicability.




                                 26


(internal quotation marks and citations omitted).14

 Thus, because the Sentencing Commission has not expressly

forbidden double counting in applying the aggravated assault

guideline, we hold that the district court correctly granted the

four-point enhancement even if doing so might in some sense

constitute double counting.15

            To hold otherwise would frustrate the structure of the

Guidelines and their goal of ensuring the proportionality of

federal sentences, as the other circuits that we follow have

observed.    Implicit in the aggravated assault guideline is the

understanding that certain aggravated assaults are more serious

than others.    In crafting the aggravated assault provision, the

Sentencing Commission sought to take different levels of

culpability into account: this guideline assumes that defendants

are more culpable if they “use” a dangerous weapon in the

commission of an offense than if they merely possess that weapon

with the intent to do bodily harm.         We follow the Fourth Circuit

in noting that “[w]e cannot . . . deprive the Sentencing

Commission of its authority to assign incrementally higher

     14
      Expressio unius est exclusio alterius means: the “expression of one
thing is the exclusion of another.” Black’s
Law Dictionary 581 (6th ed. 1990).

     15
       We note that the Second Circuit, the sole circuit to have held that the
enhancement for the use of a dangerous weapon constitutes double counting
unless the weapon is inherently dangerous, has explicitly refrained from
holding that the Guidelines bar double counting only in a few, specifically
enumerated, circumstances. See 

; United
States v. Olvera, 

, 791 (2d Cir. 1992). Hence, that circuit can
find that an enhancement constitutes impermissible double counting even if the
Guidelines have not expressly forbidden double counting in the provision at
issue.




                                     27
sentences based on important factors such as the degree of the

weapon’s involvement and the degree of the victim’s injury.”

; 

n.32 (“The

relevant way to describe what is going on here is that the use of

a weapon transformed [the defendant’s] offense from a minor

assault to an aggravated-assault-in-which-a dangerous-weapon-was-

otherwise-used.   That we use a single sentencing factor ‘twice’

to trace the effects of this transformation (first to distinguish

minor from aggravated assaults, then to distinguish more and less

culpable aggravated assaults) is merely an accidental by-product

of the mechanics of applying the Guidelines.”).

          In sum, we conclude that the district court properly

interpreted Sentencing Guidelines § 2A2.2.

          The judgment of the district court will be affirmed.




                                28