NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       __________

                                       No. 17-3606
                                       __________

                            UNITED STATES OF AMERICA

                                             v.

                               STEPHEN MATAKOVICH,
                                        Appellant

                                       __________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Criminal No. 2-16-cr-00073-001)
                        District Judge: Honorable Cathy Bissoon
                                       __________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  September 12, 2018

          BEFORE: JORDAN, NYGAARD, and VANASKIE Circuit Judges


                          (Opinion Filed: December 28, 2018)

                                       __________

                                        OPINION*
                                       __________



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
NYGAARD, Circuit Judge.

                                             I.

       A jury convicted former police officer Stephen Matakovich of using excessive

force, in violation of 18 U.S.C. § 242. He appeals from the judgment of conviction and

sentence, challenging the District Court’s denial of his motion for judgment of acquittal.

He also argues that a post-arrest dash-cam video should have been admitted into

evidence. We will affirm.

                                                  II.

                                                  A.

       Matakovich complains that the District Court erred by denying his motion for

judgment of acquittal because there is insufficient evidence that he used excessive force.1

“We exercise plenary review over a district court's grant or denial of a motion for

judgment of acquittal based on the sufficiency of the evidence.”2 We will uphold the

conviction if, upon viewing the evidence in the light most favorable to the government, it




1
  To convict under Section 242 of Title 18 of the United States Code, the government
must prove beyond a reasonable doubt that: “(1) the defendant's acts must have deprived
someone of a right secured or protected by the Constitution or laws of the United States;
(2) the defendant's illegal acts must have been committed under color of law; (3) the
person deprived of his rights must have been an inhabitant of a State, Territory, or
District; and (4) the defendant must have acted willfully.” United States v. Senak, 

, 306 (7th Cir. 1973) cert. denied, 

(1973). Matakovich challenges
only that there is sufficient evidence to prove that Gabriel Despres was deprived of his
right not to be subjected to excessive or unreasonable force.
2
  United States v. Richardson, 

, 337 (3d Cir. 2011) (quoting United States v.
Starnes, 

, 206 (3d Cir.2009)).
                                             2
would permit a reasonable jury to find the elements of the crime beyond a reasonable

doubt.3

       Matakovich does not deny that he shoved and punched Gerard Despres on the

night of November 28, 2015. Rather, he relies on three arguments to assert that the force

he used was not excessive. Matakovich argues that—using factors applied to excessive

force claims raised in a civil context4—no jury would conclude that his actions towards

this drunk, uncooperative man were unreasonable in these circumstances. In support of

this, he notes that the Government concedes Despres was intoxicated and was

uncooperative, and that it did not challenge Despres’ arrest.

       Next, he says the Government portrayed him as the aggressor, in part, by

introducing evidence of his temperament on that night, an improper subjective factor that

does not belong in an objective analysis.5 Although he makes no explicit claim of

prejudice, he implies that this prejudiced the jury’s consideration of his testimony on

aspects of the event that only he observed, as an officer trained to prevent aggression and




3
  United States v. Boria, 

, 480 (3d Cir. 2010).
4
  Mellott v. Heemer, 

, 122 (3d Cir. 1998) (citing Graham v. Connor, 

, 397 (1989); Sharrar v. Felsing, 

, 822 (3d Cir. 1997)) (Using a
case-by-case approach we examine the severity of the crime, the immediacy of the threat
to the safety of the officers posed by the suspect, and whether there was active resistance
to arrest. The analysis of the reasonableness of the force used is judged from the
viewpoint of a reasonable officer.).
5
  Oates portrayed Matakovich as unhappy that he was called away from the game to deal
with Despres. A. 237-38. Wise testified that Matakovich was “irritated” that Despres
had not left. A. 282. Mr. Jackson, a Landmark employee present at Gate 5 on that night
viewed him as “angry” and “frustrated.” A. 409.
                                             3
confrontational outbursts.6 He argues that his observations were essential to assess the

reasonableness of his actions to subdue Despres.7

       Finally, Matakovich argues that there was simply no evidence to prove that, after

he first shoved Despres to the ground, the force he continued to use exceeded what was

necessary to make the arrest.8 In other words, he maintains that all of his physical contact

with Despres was solely in reaction to Despres’ conduct and his refusal to submit to

being arrested.9

       None of these arguments are persuasive, given the overwhelming amount of

corroborated evidence. A brief summary of the record follows.

                                                 B.

       Gerard Despres, a teenaged boy, tried to enter Heinz Field in Pittsburgh to watch a

high school football championship game.10 Personnel from Landmark Event Staffing (a

firm that provides unarmed event-security at the stadium) refused to let him enter because




6
  Matakovich makes a confusing statement in his brief that appears to admit—following
his acquittal on obstruction charges—that he misrepresented Despres’ conduct. Brief for
Appellant at. 21-22. Given the equivocal nature of his statement, and statements made
elsewhere in his brief (Id. at 9-10) we will not regard it as an admission.
7
  He asserts that Despres turned and “bladed” his stance, clenched his hands in fists, and
shifted his weight to the balls of his feet. A. 484-486. Convinced tht Despres was
“poised to strike” (A. 487) Matakovich shoved Despres to create a “reactionary gap.” A.
595. After this Despres stood up and and said “What the f***?” A. 487.
8
  After Matakovich created a “reactionary gap” by shoving Despres, Matakovich says the
man physically resisted his attempts to arrest him. A. 487-491.
9
  Matakovich points to testimony that Despres was “belligerent,” but that testimony refers
to Despres’ interaction at the first gate. A. 180. There is no such testimony about
Despres’ interaction with Matakovich.

.
                                             4
he showed signs of being intoxicated. So he eventually wandered to another gate.11

Landmark manager Sean Oates followed the procedure for a “gate denial.”12 He

summoned Stephen Matakovich, a Pittsburgh police officer (at that time) who was

working an “off-duty detail” in the stadium that evening.13 From a control room, an

employee of U.S. Security (the company providing 24-hour security at the stadium)

adjusted a surveillance camera to record Matakovich’s encounter with Despres.14

Despres was beginning to leave when Matakovich, Oates, and another person from

Landmark—William Wise—walked up to him.15 Despres appeared “very confused” and

had a hard time staying on his feet.16

       Despres asked the trio to let him into the stadium and, at first, did not move when

Matakovich used an expletive and ordered him to leave.17 Despres then turned to walk

away18 and Matakovich began taunting him.19 Upon hearing this, Despres stopped and

turned back to Matakovich and stared at him.20 After a pause—Matakovich moved


11
   

122-23.

; 237-38.

.
15
   Vid. 8:36: 44; A. 269-70.

.

.
18
   Vid. 8:37:12.

; 133. Matakovich says this was in response to Despres asking if they could
take him to his friends, but no one else testifies to this. A. 483. He goes further,
minimizing the taunt by calling it “snarky but non-threatening.” Brief for Appellant at
23.
20
   Vid. 8:37:13. Matakovich described his turning away as “pacing” rather than moving
away, declaring that Despres was still engaging him, but no one else describes it this way.
A. 483. He also says that he shoved Despres to the ground to create a “reactionary gap”
after Despres turned back around and said, “What the f***?” A. 488.
                                             5
toward Despres and forcefully shoved him to the ground.21 Matakovich shoved him a

second time after Despres tried to stand up,22 and then repeatedly punched his head and

body. This lasted eighteen seconds.23 Despres ended up on the ground in a fetal position

with Matakovich over him.24

       Eyewitnesses testified that Despres did not pose a threat at any point.25 Rather, he

appeared to not understand what was going on.26 Wise said he helped restrain Despres

after he was on the ground mainly to “get it over with.”27 Wise was disturbed “about

how he was hit” because it was “unnecessary.”28 Oates silently agreed with Despres’

complaints immediately afterward that it “wasn’t right.”29 Oates testified that he was

upset because Matakovich’s conduct was unnecessary.30

                                                 C.

       In light of this evidence, even were we to apply the Mellott factors, and agree

arguendo that the evidence of Matakovich’s temperament was improperly introduced, we

will not disturb the District Court’s ruling on the judgment of acquittal. There are

21
   Vid. 8:37:31.
22
   Vid. 8:37:36.
23
   Vid. 8:37:37-55.
24
   Vid. 8:37:58. Wise testified that Matakovich said nothing throughout this period. A.
286.
25
   Oates expressed surprise at Matakovich’s shove because, in his opinion, Despres was
willing to comply and leave. A. 155. Wise concurred with the lack of perceived risk of
harm in that moment, saying that Despres “posed no threat.” A. 284, 297. William
Chernosky, a U.S. Security employee assigned to Gate 5 that evening, testified that
Despres did not appear to be aggressive or threatening throughout this time. A. 269.

.

.
28
   

.
                                             6
circumstances in which a trained officer’s observations trump those of untrained eyes.

But the amount of evidence here from persons who were only feet away31—corroborated

by video—that characterize Despres as non-threatening, confused, and struggling to

protect himself from punches is compelling. A reasonable jury could conclude on this

record that Matakovich’s perceptions of Despres as a drunk young man who was itching

for a fight—justifying his initial use of force—were simply not credible. The same is

true about Matakovich’s claim that his continued use of force was justified because

Despres violently resisted arrest. No one interpreted Despres’ response to Matakovich as

aggressive. The eyewitness and video evidence is overwhelmingly supportive of a

reasonable jury’s conclusion that the force Matakovich used was unreasonable and

excessive.32

                                                  III.

       He next challenges the District Court’s refusal to admit a post-arrest video

recording from a dash-cam that captured Despres’ comments while being transported

from the hospital to the jail.33 He contends the evidence is probative of whether Despres


31
   See e.g. A. 286.
32
   Matakovich insists that the injuries Despres sustained were minor, that the altercation
was only thirty seconds, and Despres actively resisted arrest. But these do not outweigh
Matakovich’s grossly disproportionate response to the circumstance he encountered.
33
   Counsel for Matakovich summarized the content of the video:

               He asks the officers to tell your chunky buddy cop that he
               can't punch. He says, that guy wasn't trying to hurt me. He
               says -- I'm lost on it right now. He says that -- he indicates
               that he was punched when he was handcuffed, which is not
               what happened. He calls Mr. Matakovich various names,
               says he punches like a pussy. Those are the ones that I can
                                              7
was injured, whether Matakovich used unreasonable force, and whether he intended to

use excessive force. The Government argues that Matakovich waived his arguments on

whether the force was unreasonable, and also on his intent to use unreasonable force. We

review the District Court’s decision to exclude evidence for an abuse of discretion, when

the issue has been properly preserved.34

       Both parties agree that Matakovich preserved his argument that the evidence was

admissible to show that Despres’ injury was not severe, so we will begin there. Once it

has been established that the defendant caused a physical injury, the severity of the injury

is not a controlling element.35 Here, all of the eye-witnesses testifying on the topic said


              think of. I think that the transport video is also relevant just
              to show Mr. Despres, his general behavior at that time
              because he's asking the police officers who are transporting
              him to take a Snapchat with him so that he can send it to his
              friends. He talks about how much alcohol he ingested that
              night and the fact that he was drinking Captain Morgan. He
              asks them, one of the police officers, something comes over
              the radio saying that there's a rave in progress and Mr.
              Despres says, hey, let's go to that. Give me your coat, give
              me your cop coat and I'll go in. So I think his general
              demeanor, which is also I think not hearsay and so it would
              be admissible to show that he's relatively unaffected by
              everything that happened that night.

A. 39.
34
   Walden v. Georgia-Pacific Corp., 

, 517 (3d Cir. 1997).
35
   See United States v. Myers, 

, 1572-73 (11th Cir. 1992). Matakovich
admits to punching Despres in the face, and that Despres had a bloody nose afterward.
A. 381. Two witnesses also testified to seeing injuries after Matakovich shoved and
punched Despres, noting cuts to the side of Despres’ head and red marks on his neck, (A.
299) marks on his nose and blood, and “general puffiness.” A. 163. A third witness, who
only saw Despres when he was transporting him, recalls Matakovich telling him that he
punched Despres, and the witness recalls assuming at that time that Despres’ bloody nose
came from this. A. 619.
                                              8
that Despres had no visible injuries before Matakovich approached him, but did

afterward.36 There is also photographic evidence.37 All of this shows sufficient evidence

of injury. It is inconceivable, given this evidence, that a video capturing comments by

Despres about the event many hours later would convince a jury that he was not injured.

         Matakovich’s remaining arguments—that the evidence showed he did not intend

to use excessive force, and that the force was not, in fact, excessive—fair no better. As

we concluded above, it is inconceivable—to the degree it would even be relevant outside

an impeachment context—that a video capturing comments by Despres many hours later

would change the jury’s conclusions about Matakovich’s intent. This is particularly so

given that his comments concerned events that happened while he was intoxicated. We

reach the same conclusion regarding the excessiveness of the force he used, given the

degree of corroboration among eyewitnesses and the video. As a result, the District

Court did not abuse its discretion to limit the admissibility of this evidence to

impeachment.

                                               IV.

         For all of these reasons, we will affirm the order of the District Court.

, 250, 268, 299.

.
                                                9