In the
United States Court of Appeals
For the Seventh Circuit

Nos. 00-2565 & 00-3026

United States of America,

Plaintiff-Appellee,

v.

David Brown and Bruce Troxel,

Defendants-Appellants.

Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 99 CR 61--James T. Moody, Judge.

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



  Before Bauer, Manion, and Diane P. Wood,
Circuit Judges.

  Bauer, Circuit Judge. David Brown and
Bruce Troxel, Gary, Indiana police
officers, were convicted of depriving an
individual of his constitutional rights
under color of law in violation of 18
U.S.C. sec. 242 and of using a firearm in
a crime of violence in violation of 18
U.S.C. sec. 924 (c). Defendants ask us to
reverse their convictions because: (1)
the district court improperly admitted
other occurrence evidence stemming from
an altercation between Brown and a nude
dancer, Jill Carda ("the Carda
incident"); and (2) the district court
improperly instructed the jury. We
decline this invitation.

I.   Background

  On July 14, 1998 around 9:00 PM, Tab
Wilhoit delivered a load of steel to D&W
Transfer. He parked in D&W’s lot and
decided to take a nap. Wilhoit lowered
the landing gear on the trailer and
locked his cab to the trailer. In that
position, Wilhoit could not move his cab.
Unbeknownst to Wilhoit, drug deals were
common in the parking lot. Wilhoit fell
asleep with his window partially down. He
awoke at 2:00 AM to find a man sticking
his head through the window and asking
for money. Wilhoit gave the man a few
dollars and told him to leave. Wilhoit
got out his pocket knife to defend
himself in case the man returned and pre
pared to move his cab.

  Next door, off-duty police officers
Brown and Troxel whiled away the night of
July 14 socializing and drinking at the
Caddy Shack Lounge ("Lounge"), a strip
club and bar. Although Brown moonlighted
at the Lounge as a bouncer, he was not
working that night or early the next
morning. Around 2:00 AM, Brown and Troxel
heard that a man was dealing drugs in the
D&W lot and went to investigate. They
encountered a man on a bicycle who
admitted that he was selling drugs,
pointed out Wilhoit’s cab, and told the
officers that he got a few dollars from
the man in it.

  As Brown and Troxel approached Wilhoit’s
cab, Wilhoit turned his lights on. Troxel
approached the passenger’s side of
Wilhoit’s cab, demanded that Wilhoit open
the "mother- fucking door right now" and
held his police badge up to the window.
Troxel was not wearing a police uniform.
Wilhoit refused to open the door because,
he said, he thought Troxel was going to
rob him. Wilhoit did not believe Troxel
was a police officer because Troxel was
dressed in plain clothes and there was no
police cruiser in the immediate vicinity.
Troxel went to the driver’s side window,
which was rolled down 6 to 8 inches.
Troxel put his badge through the driver’s
window, demanding that Wilhoit exit his
cab. When Wilhoit refused, Troxel reached
inside the cab; with one hand he choked
Wilhoit by twisting his thick gold
necklace tightly around his neck. With
the other hand, Troxel grabbed Wilhoit’s
hair and attempted to pull him out the
window. Terrified, Wilhoit stabbed Troxel
in the arm 5 to 6 times with his pocket
knife.

  Seeing Troxel’s injuries, Brown, dressed
in a police jumpsuit, approached both the
passenger and driver’s side of the cab
demanding that Wilhoit exit the truck.
Wilhoit continued to refuse. Brown leapt
onto the hood of the cab and identified
himself as a police officer, showing
Wilhoit the word "POLICE" on his back.
Despite Brown’s demands, Wilhoit
steadfastly remained in the cab. Brown
pulled his gun and pointed it at Wilhoit.
Convinced he was being robbed, Wilhoit
yelled into his CB radio for someone to
call the police. Brown responded, "I am
the fucking police! Unlock the door!" and
kicked the windshield repeatedly. Wilhoit
finally opened his cab door.

  According to Wilhoit, Troxel struck him
in the face with a hard object, and both
defendants repeatedly punched and kicked
Wilhoit. Wilhoit attempted to defend
himself, but Brown threw him to the
ground. The defendants put a gun to
Wilhoit’s head and threatened that if he
told anyone of the incident, they would
kill him and his family. They told
Wilhoit that they should "kill him now"
and throw his body out back in the
transfer lot. Defendants took Wilhoit’s
wallet and asked him where he lived.
Wilhoit answered truthfully, but his
driver’s license reflected a previous
address. Defendants accused Wilhoit of
lying, smashed the side of his truck with
a hammer, and reiterated that they would
kill him if he told anyone of the
altercation.

  After defendants left, Wilhoit found
Troxel’s wallet lying on the ground. He
took it, rolled up the truck’s landing
gear, and drove to the first truck stop
in Michigan where he called the Michigan
state police. The Michigan police found
an upset Wilhoit bleeding from his face
and wearing a ripped shirt. Wilhoit
turned over Troxel’s wallet, and the
Michigan police investigated. The
investigation disclosed that Brown and
Troxel failed to report the incident to
the Gary police department, which the
department required officers to do when
they used force against civilians or were
themselves injured.

  Defendants were charged with violating
18 U.S.C. sec. 924(c)(1) & (2) for
knowingly using and carrying a firearm in
the commission of a violent crime, and 18
U.S.C. sec. 242 for depriving Wilhoit of
his constitutional right to be free from
intentional use of unreasonable and
excessive force by one acting under color
of law. The latter claim is grounded in
the Fourth Amendment right to be free of
unreasonable searches and seizures.

  The Carda incident occurred roughly one
year prior to the altercation with
Wilhoit. While Brown was working as a
bouncer at the Lounge, he pulled a chair
out from under an exotic dancer, Jill
Carda, as she tried to sit down. Carda
confronted Brown. Brown threw Carda into
a wall and then face down onto the
ground. He choked her by stepping on the
back of her neck and pulling her arm
backward until it cut off her breath.
Brown asked the Lounge owner whether he
should "take Carda out back and finish
her off."

  The government planned to use the Carda
incident to prove the intent element of
sec. 242. Before trial, defendants
submitted a motion in limine to exclude
this incident, theorizing that under Fed.
R. Evid. 404(b), it would constitute an
inadmissible prior bad act. After
initially granting the motion in limine,
the court reversed course and ruled the
Carda incident admissible.

  The jury convicted defendants on both
counts. Brown and Troxel now contest
their convictions, arguing that the Carda
incident should have been excluded from
evidence as a prior bad act under Fed. R.
Evid. 404(b) and that flaws in jury
instruction No. 21, given over the
defendants’ objection, denied them a fair
trial.

II.    Discussion

  A.    The Carda Incident

  Defendants argued both before the
district court and on appeal that the
Carda incident is an inadmissible prior
bad act under 404(b). We review the
court’s decision to admit evidence under
sec. 404(b) for abuse of discretion. See
United States v. Williams, 

,
614 (7th Cir. 2000). The district court
admitted the Carda incident based in part
on its judgment that the incident was
probative of the intent element of 18
U.S.C. sec. 242, which makes it a crime
to (1) wilfully (2) under color of law
(3) deprive a person of rights protected
by the Constitution of the laws of the
United States, see United States v.
Bradley, 

, 767 (7th Cir.
1999) (citations omitted). Evidence of
prior bad acts is properly admitted under
404(b) if the evidence: (1) tends to
establish a matter at issue other than
the defendant’s propensity to commit the
crime charged; (2) is sufficiently
similar and close in time to the matter
at issue to be relevant; (3) supports a
jury finding that the defendant committed
the similar act; and (4) has probative
value that substantially outweighs the
danger of unfair prejudice. See Williams,
216 F.3d at 614.

  Defendants dispute the first element of
the 404(b) test, that the Carda incident
sheds light on a matter at issue, because
they argue that defendants’ intent was
not at issue. Intent is automatically at
issue in specific intent crimes. See
United States v. Gellene, 

,
595 (7th Cir. 1999). Contrary to
defendants’ argument, sec. 242 is a
specific intent crime. See Screws v.
United States, 

, 103 (1944)
("But as we have seen, the word
’wilfully’ was added to make [sec. 242]
’less severe.’ We think the inference is
permissible that its severity was to be
lessened by making it applicable only
where the requisite bad purpose was
present, thus requiring specific intent
not only where discrimination is claimed,
but in other situations as well.");
Bradley, 196 F.3d at 769-70 (upholding
jury instructions which required specific
intent as correctly summarizing the
"wilfulness" element of 18 U.S.C. sec.
242); United States v. Johnstone, 

, 207-09 (3d Cir. 1997)
(exploring the role of specific intent in
18 U.S.C. sec. 242); United States v.
Reese, 

, 880-82 (9th Cir. 1993)
(discussing the specific intent
requirement in 18 U.S.C. sec. 242).
Defendants further argue that the Carda
incident is unnecessary to prove intent
because they did not contest the element.
However, intent is a material issue in
this case, and, subject to some
restrictions not relevant here, the
prosecution is entitled to establish it
by using admissible evidence of their
choosing. See United States v. Williams,

, 875 (7th Cir. 2001).

  Defendants’ most serious challenge to
the Carda incident contends that it is
not similar enough to the Wilhoit
altercation to be probative of
defendants’ intent to deprive Wilhoit of
his rights. Rather, they argue that it
impermissibly speaks to Brown’s
propensity for violent behavior. See Fed.
R. Evid. 404(b). The admissibility of the
Carda incident presents a close case.
Whether a prior bad act is similar enough
to speak to an issue that 404(b) deems
legitimate is case specific and depends
on the theory employed by the party
lobbying for admission. See United States
v. Torres, 

, 326 (7th Cir.
1992).

  The government urges that the Carda
incident is probative of Brown’s intent
to use his police affiliation to effectu
ate disproportionate and violent
punishment against people who failed to
respect his authority. Defendants argue
that the Carda incident is not probative
because Brown was not acting under color
of law when the incident occurred;
specifically, Brown was not wearing any
police gear. When he worked at the
Lounge, however, Brown drew attention to
his police authority. He insured the
Lounge patrons’ awareness of his
affiliation by regularly wearing his
police uniform and jumpsuit to his job as
a bouncer. Brown’s general emphasis of
his police affiliation diminishes the
importance of the fact that Brown was not
wearing any police uniform on the day of
the Carda incident. When Brown was
working as a bouncer, Carda disrespected
his authority by swearing at him and
challenging him for pulling her chair
away. Brown responded by violently
punishing Carda for her insolence. He
slammed Carda to the ground, choked her,
and threatened to "finish her off."
Similarly, Wilhoit defied Brown by
ignoring his command to exit the truck.
Brown retaliated by damaging Wilhoit’s
truck, beating Wilhoit to the ground, and
threatening to kill him. Given the
government’s theory that Brown intended
to punish people who defied his
authority, we believe that the Carda
incident is probative of Brown’s
retaliatory intent to use excessive force
whenever his orders are ignored or his
authority questioned. The Carda incident
demonstrates more than Brown’s general
propensity for violence. See, e.g.,
Torres, 977 F.2d at 326-28.

  Defendants last contend that the
incident was unfairly prejudicial and
encouraged the jury to decide the issue
of guilt based on Brown’s past actions.
The Carda incident, however, added
valuable information about Brown’s intent
to punish defiant individuals. Further,
the judge admonished the jury three
times, once immediately before their
deliberations, that they should consider
the Carda incident only so far as it
spoke to Brown’s intent. Given these fac
tors, the district court did not abuse
its discretion by admitting the Carda
incident.

  At any rate, even if the admission into
evidence was error, it was harmless
beyond a reasonable doubt. Error is
rendered harmless when it is clear beyond
a reasonable doubt that a rational jury
would have convicted defendants absent
the erroneously admitted evidence. See
United States v. Swan, 

, 635
(7th Cir. 2000), amended by 

(7th Cir. 2000). Given the other evidence
in this case, a rational jury would have
found that the defendants intended to
deprive Wilhoit of his right to be free
from excessive use of force even without
evidence of the Carda incident. Wilhoit’s
injuries and the damage to his truck
reflect the disproportionate force the
defendants used to compel his compliance.
This physical evidence and the fact that
Wilhoit was in possession of Troxel’s
wallet bolsters Wilhoit’s version of the
events. Most tellingly, Brown and Troxel
failed to file a police report about the
Wilhoit incident, which the Gary police
department requires when an officer
injures a civilian in the course of his
duties or is injured himself.


  B.   Jury Instructions

  We review the district court’s choice of
jury instructions "as a whole to
determine whether they provide a fair and
accurate summary of the law." Bradley,
196 F.3d at 769. If and when we find the
jury instructions inadequate, we will
reverse defendants’ convictions only if
we believe the jury’s understanding of
the issues to be so misguided that it
prejudiced one of the parties. See Soller
v. Moore, 

, 969 (7th Cir.
1996) (citations omitted).

  Defendants charge that the jury
instruction failed adequately to instruct
jurors to use the "objectively
reasonable" standard when determining
whether defendants used excessive force.
Defendants were convicted under 18 U.S.C.
sec. 242, which protects against the
deprivation by someone acting under color
of the law of "any rights, privileges, or
immunities secured or protected by the
Constitution or laws of the United States
. . . ." In this case, the violation of
sec. 242 stems from unreasonable use of
force during an investigatory stop, which
is prohibited by the Fourth Amendment.
The point of view from which the jury
must evaluate the unreasonable or
excessive use of force claim is therefore
dictated by the Fourth Amendment, and has
been most recently and clearly
articulated by the Supreme Court in the
context of a 42 U.S.C. sec. 1983
violation. In unreasonable or excessive
use of force cases, jurors must determine
whether the use of force was reasonable
by using the "objective reasonableness"
standard; that is, by evaluating the
situation from the viewpoint of "a
reasonable officer on the scene." Graham
v. Connor, 

, 388, 395-96
(1988). Defendants argue that instruction
No. 21 does not convey that the jurors
should evaluate the events from "the
perspective of the officers at the time
of the unfolding events." However, this
argument is rebutted by the very language
of the instruction:

If you find that a defendant used force
in this incident, you may then consider
whether the force used by a defendant was
necessary in the first place or was
greater than the force that would appear
necessary to a reasonable law enforcement
officer on the scene (emphasis added).

Instruction No. 21 correctly and
adequately summarizes the "objective
reasonableness" standard.

  Defendants propose alternate jury
instructions No. 9 and No. 12, which
articulate the "objective reasonableness"
standard in different language than
instruction No. 21. In particular,
instruction No. 12 elaborates on the
definition of "reasonableness" using
language taken from Graham, 490 U.S. at
396. While these alternate instructions
are legally correct, parties are not
entitled to their preferred instructions.
Instruction No. 21 was adequate and we
will not rule that the district court
selected it in error.

  The defendants further ask us to reverse
because the jury instructions failed to
address (1) circumstances which justify
police use of deadly force and (2)
defendants’ failure to follow police
procedures. The defense is entitled to
instructions on its case theory only if
(1) the proffered instruction is a
correct statement of the law; (2) the
defense theory is supported by evidence;
(3) the defense theory is not part of the
charge; and (4) failure to give the
instruction would deny defendants a fair
trial. See United States v. Wilson, 

, 864 (7th Cir. 1998). Defendants
fail to establish that the court’s
refusal denied them a fair trial.
Instruction No. 21 addressed use of
force:

A law enforcement officer is justified in
the use of any force which he reasonably
believes to be necessary to effect an
investigatory stop, arrest, or to hold
someone in custody and of any force which
he reasonably believes to be necessary to
defend himself or another from bodily
harm.

The district court did not abuse its
discretion when it chose not to address
the use of deadly force in particular.

  Further, any failure to instruct on
police procedures did not deny defendants
a fair trial. Defendants lobbied to
inform the jury that failure to file a
police report did not itself constitute a
violation of Wilhoit’s constitutional
rights, however, the government never
argued such a theory. Rather, the
government contended that the beating
violated Wilhoit’s rights and pointed to
defendants’ failure to file a police
report as evidence of defendants’ intent.
Therefore, the district court did not
abuse its discretion by refusing to
instruct the jury on deadly force and
report filing.

  We Affirm defendants’ convictions.