MARK G. MASTROIANNI, District Judge.
Christopher Roeder ("Defendant"), a former police officer, was charged with violating an arrestee's Fourth Amendment rights (18 U.S.C. § 242) and falsifying a report about the incident (18 U.S.C. § 1519). A jury convicted Defendant of both counts. He subsequently moved for judgment of acquittal under Fed. R. Crim. P. 29(c). (Dkt. No. 157.) The court treated the motion as seeking additional time to file a Rule 29 motion so Defendant could have sufficient time to order and review the trial transcripts. (Dkt. No. 158.) After having that time, Defendant filed a supplemental Rule 29 motion, challenging the sufficiency of the evidence underlying both convictions.
Defendant was formerly a police officer with the Hadley Police Department ("HPD"). On March 30, 2017, he was working a traffic detail in Hadley, Massachusetts where the town's Department of Public Works ("DPW") was trimming trees. Nickolas Peters drove a pickup truck down the street where the DPW was working and where Defendant was directing traffic. The side mirror of Mr. Peters' truck hit Defendant's elbow. According to Edward Koehler
On April 3, 2017, Defendant was handling traffic enforcement and saw a pickup truck that resembled the one that had hit him a few days earlier. As the pickup drove past Defendant, he recognized its driver as the person who had hit him and had driven off. Defendant then activated his emergency lights, followed the pickup, and pulled it over. Defendant told Mr. Peters he was going to arrest him for what had happened on March 30, and Defendant called HPD for backup. Defendant eventually transported Mr. Peters to the police station for booking. The dispatcher on duty, Richard Downie, testified that when Defendant arrived at the station, "[h]e seemed a little anxious, irritated" and "had an angry look on his face." (Jan. 29, 2019 Trial Tr. (Dkt. No. 168) at 101:5-10; see also id. at 123:15-16, 123:25-124:6.)
Defendant and HPD Officer Courtney Call booked Mr. Peters. Two video cameras captured what happened during the booking process. Three videos were admitted into evidence at trial: the footage from the two cameras and a split screen video showing the footage from both cameras next to each other. (Trial Exs. 1 (video from side of booking area), 4 (split-screen video), & 12 (video of view from behind booking desk).) Only the side-view camera recorded audio; that audio plays in both the side-view and split-view videos. This still from the split-view shows the perspective of each camera, with the side-view on the left and the view from behind the booking desk on the right:
Officer Call photographed Mr. Peters while he was standing against a wall of the booking area. He then sat on the bench in the booking area, and she walked out of view of the side camera and asked him a question. He stood up while answering and quickly sat back down. As he was sitting down, Defendant spoke to Mr. Peters, but it is difficult to decipher what Defendant said. Mr. Peters responded, "Sir, I was asked a question, okay" and then Mr. Peters twice said, "Settle down."
Defendant and Officer Call were behind the booking desk during this interaction. Defendant came around the booking desk toward where Mr. Peters sat. While approaching him, Defendant said, "You're not in charge here, bud." Mr. Peters replied, "I know I'm not." Mr. Peters was seated with his hands in his lap; he gestured a few times while speaking with Defendant:
Defendant held handcuffs in his right hand and, with his left hand, reached for Mr. Peters' right arm and hand:
As Defendant reached, Mr. Peters said, "I'm not being cuffed" and put both hands behind his back, so they were between his body and the wall behind him. Defendant's left arm ended up between Mr. Peters' right arm and Mr. Peters' body so that Defendant's hand was behind Mr. Peters' back. The handcuffs remained in Defendant's right hand:
Defendant told Mr. Peters, "You are being cuffed. You are being cuffed. Release your grasp right now." The next second, Defendant used his right elbow to strike Mr. Peters in the nose:
After striking Mr. Peters, Defendant cuffed Mr. Peters' left arm to the bar on the wall and left the immediate area. Officer Call tended to Mr. Peters, whose blood was dripping from his face onto the bench and floor. Defendant, who had walked around to the other side of the booking desk, said, "I just told you, you're not in — I told you stop resisting." He asked for a colleague to call EMTs and continued booking Mr. Peters. After the EMTs arrived, Defendant told them Mr. Peters "just has a broken nose." Mr. Peters was taken to the hospital, diagnosed with a broken nose, and subsequently underwent surgery to repair it.
A few hours after the incident, Defendant, Officer Call, the dispatcher (Officer Downie), and Sergeant Ken Hartwright (the supervisor on duty) watched the video footage of it. Sergeant Hartwright instructed Defendant to document the incident. Accordingly, that night, Defendant wrote a police report about it. HPD Officer Janelle Seitz testified she saw Defendant typing the report at a computer in the squad room. He showed her the booking video, which was open in a minimized window on the computer.
The Government charged Defendant with intentionally making four false statements in his police report:
The jury found the Government proved its case only as to the first and third statements. (Verdict Form (Dkt. No. 154).)
At trial, the government called witnesses who testified about training Defendant received regarding the use of force. Sergeant Brian Daly (who was both a fact and expert witness) testified that the type and amount of force an officer may use depends on his perception of a subject's actions. The police academy uses training modules to teach recruits about using force. The modules classify a subject's behavior and provide appropriate responses depending on the behavior. Sergeant Daly was the defensive tactics instructor who taught Defendant at the police academy, and Sergeant Daly used these modules when training Defendant.
A subject who is "resistant active" is "using some sort of physical or mechanical energy enhancement toward their resistant effort." (Jan. 30, 2019 Trial Tr. (Dkt. No. 176) at 62:21-63:1.) For example, if a subject was participating in a sit-in or die-in form of protest and the officer placed his hands on the subject, the subject would become "resistant active" if he "pulled [his] arm away or tightened [his] body up" or "activat[ed] the muscles or us[ed] a mechanism to resist, such as latching on to an object that is stationary to prevent [his body] from being moved."
The next level of a subject's behavior is classified as "assaultive bodily harm," which describes someone who "displays signs that an attack is going to be imminent, clenched fists, bladed stance[,] . . . words that are coming out of their mouth, things like, `I'm not going to jail. If you touch me, I'm going to kill you, or I'm going to strike you, or I'm going to hit you,' things like that." (Id. at 63:14-22.) In response to "assaultive bodily harm," an officer may use "defensive tactics" like "empty hand strikes, punches, knee strikes, elbow strikes, edge-fist strikes, baton strikes, things like that." (Id. at 67:11-22; see also id. at 92:22-95:5 (describing defensive tactics).) An elbow strike carries a risk of injury because "[i]t's a larger area" of the officer's body, "there's more bone showing," and an officer "tend[s] to generate more force, because you're closer to your zero line or center mass." (Id. at 95:3-5.) Sergeant Daly compared "resistant active" to "assaultive bodily harm": "Active resistance is preventing the officer from moving or from getting an arm or things like that; where an assaultive bodily harm subject, there's more of a focused attack on the person." (Id. at 64:1-4.)
Sergeant Daly also testified about target areas of a subject's body where police recruits are trained to focus depending on the threat level. The bridge of the nose may be an appropriate target area when "there [i]s a significant attack. We would teach strikes to that area usually during an edgeweapon defense," which is when an officer is "being attacked by someone with an edge weapon, a knife, a razor blade, things like that." (Jan. 30, 2019 Trial Tr. (Dkt. No. 176) at 116:23-117:7.)
On an exam at the police academy covering these topics, Defendant scored a 96, meaning he got only two questions wrong. He got the following questions correct:
(Trial Ex. 6.)
Defendant himself and both parties' experts testified an officer may not use force out of anger or to punish someone. (Jan. 31, 2019 Trial Tr. (Dkt. No. 169) at 16:25-17:3, 27:1-10 (Sergeant Daly's testimony); Feb. 1, 2019 Trial Tr. (Dkt. No. 170) at 91:16-18 (Defendant's testimony); id. at 187:13-15, 223:11-17 (Defendant's expert's testimony)).
Beyond using force, Sergeant Daly testified that officers are trained that they can "disengage and reassess." (Jan. 30, 2019 Trial Tr. (Dkt. No. 176) at 147:24-25; see also id. at 186:8, 187:3-4.)
The government also called Lieutenant Brian Pomeroy, who trained Defendant, to testify about the training he provides recruits about how to write police reports. In particular, he testified he trains recruits that "[r]eports need to be complete and they need to be accurate and they need to be truthful." (Jan. 31, 2019 Trial Tr. (Dkt. No. 169) at 176:23-24.) Specifically with respect to reports regarding the use of force, recruits are trained that
(Id. at 177:7-16.)
In deciding this motion, the court must "view the evidence, both direct and circumstantial— and including all plausible inferences drawn therefrom—in the light most favorable to the verdict." United States v. Rivera Calderón, 578 F.3d 78, 88 (1st Cir. 2009). "[T]he government need not present evidence that precludes every reasonable hypothesis inconsistent with guilt in order to sustain a conviction." United States v. Loder, 23 F.3d 586, 590 (1st Cir. 1994). Rather, the question is whether the evidence and inferences "would allow a rational factfinder to conclude beyond a reasonable doubt that the defendant committed the charged crime." United States v. Cruz-Rodríguez, 541 F.3d 19, 26 (1st Cir. 2008). The court does "not weigh the evidence or make any credibility judgments, as those are left to the jury." United States v. Merlino, 592 F.3d 22, 29 (1st Cir. 2010); see also United States v. Pérez-Ruiz, 353 F.3d 1, 7 (1st Cir. 2003) ("Credibility issues must be resolved in favor of the verdict."). "The court must reject only `those evidentiary interpretations . . . that are unreasonable, insupportable, or overly speculative, and must uphold any verdict that is supported by a plausible rendition of the record.'" United States v. Ofray-Campos, 534 F.3d 1, 31-32 (1st Cir. 2008) (quoting United States v. Hernández, 218 F.3d 58, 64 (1st Cir. 2000)).
The civil rights charge under 18 U.S.C. § 242 required the government to prove beyond a reasonable doubt: (1) Defendant acted under color of law; (2) he subjected Mr. Peters to the use of unreasonable force, which violated his Fourth Amendment right to be free from unreasonable seizures; (3) Defendant acted willfully; and (4) Mr. Peters was present in the United States. Defendant's motion focuses on elements two and three, apparently conceding elements one and four.
The evidence was sufficient for the jury to find Defendant guilty of this charge. The video footage—which was played repeatedly throughout the trial—showed Defendant's and Officer Call's interactions with Mr. Peters leading up to the elbow strike. Mr. Peters answered questions during booking, cooperated while being photographed, and remained seated when Defendant approached him after telling him he was not in charge. Mr. Peters said he would not be handcuffed and put both hands behind his back as Defendant reached for him. Based on both Sergeant Daly's and Defendant's expert's testimony, the jury could have found that Mr. Peters' conduct was "resistant active," which could have justified the use of a compliance technique in response. And the jury could have found, consistent with the testimony from both parties' experts, an elbow strike to the nose was not a reasonable response to "resistant active" conduct.
The jury also heard testimony from HPD Detective Sergeant Jesse Green, who interacted with Mr. Peters when he was being arrested on April 3, 2017 and who watched the video footage. Detective Sergeant Green explained (1) Mr. Peters acted similarly on the video as he had when he interacted with Detective Sergeant Green,
In addition, the government presented evidence supporting its theory Defendant was angry with Mr. Peters and struck him as punishment: Mr. Koehler testified Defendant said, after Mr. Peters hit Defendant's elbow with his truck, "I'll get that fucker. He's a contractor, he'll be coming through town"; the dispatcher, Officer Downie, testified he has known Defendant for years, and Defendant was "anxious," "irritated," and "angry" when he arrived at the station with Mr. Peters; and the jury could infer from Defendant's statement after he struck Mr. Peters—"I just told you, you're not in — I told you stop resisting"—that he struck Mr. Peters to show him he was not in charge, i.e., as a form of punishment. As Defendant himself and the parties' experts explained, officers are not permitted to use force to punish someone or out of anger.
As to willfulness, evidence of whether an officer complied with his training relates to whether he acted willfully. As the Seventh Circuit has explained:
See United States v. Proano, 912 F.3d 431, 439 (7th Cir. 2019) (internal citations omitted). (See also Rulings Regarding Objections to Expert Disclosures (Dkt. No. 92) at 4-5 (analyzing relevance of officer's training to issue of willfulness)). The government presented evidence of the training Defendant received about when to use force and the types of force to use. In particular, Defendant correctly answered three exam questions directly related to using force against an active resistant subject, using an elbow strike, and avoiding a subject's head unless lethal force is necessary. On the stand, Defendant acknowledged he had not been taught to use a strike to the head as a distractionary technique.
The falsification charge under 18 U.S.C. § 1519 required the government to prove beyond a reasonable doubt: (1) Defendant knowingly falsified or made a false entry in a record or document; (2) Defendant, acting in relation to or in contemplation of an investigation of a matter, intended to impede, obstruct, or influence the investigation or proper administration of that matter; and (3) the matter was within the jurisdiction of the FBI, an agency of the United States. The jury found two statements in Defendant's police report were false: first, that Mr. Peters had made an obscene comment and, second, that Defendant tried to use his right hand to control Mr. Peters' left arm. Defendant contends there was insufficient evidence to support a conviction for either statement. His argument rests primarily on the contention that the government's witnesses were incredible and could not remember certain details from the video of the incident. He also argues both statements are unrelated to his use of force, and, therefore, he did not intend to impede, obstruct, or interfere with the FBI's investigation into his use of force.
First, the court cannot "weigh the evidence or make any credibility judgments, as those are left to the jury." Merlino, 592 F.3d at 29. Thus, to the extent Defendant's argument is based on the credibility of the government's witnesses, it is unpersuasive.
Defendant's second argument—that the statements are unrelated to his use of force, so he could not have intended to impede, obstruct, or interfere with the FBI's investigation—is creative but also unpersuasive. Both statements are related to Defendant's use of force. Defendant's motion correctly notes an obscenity does not justify using force. He argues that because responding to an obscenity with force is impermissible, the inclusion of the false allegation regarding Mr. Peters' use of an obscenity cannot be related to Defendant's use of force. But Defendant's inclusion of that allegation does not strip it of having any relation to the FBI's investigation. Indeed, the FBI investigated whether the circumstances justified the force Defendant used, so statements in Defendant's report that might explain why he used force are relevant to his use of force. Similarly, the false statement regarding which arm Defendant used to control which of Mr. Peters' arms is relevant to the circumstances leading up to the elbow strike.
For the foregoing reasons, Defendant's supplemental motion for judgment of acquittal (Dkt. No. 179) is DENIED.
It is So Ordered.
