USA v. Livoti
| Citation | 196 F.3d 322 |
| Decision Date | 17 September 1999 |
| Docket Number | Docket No. 98-1608 |
| Parties | (2nd Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. FRANCIS X. LIVOTI, Defendant-Appellant. August Term 1999 Argued: |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
ANDREW S. DEMBER, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney for the Southern District of New York, ofcounsel), for Appellee.
DAVID M. VAUGHN, Worth, Longworth & Bamundo, New York, New York (Stuart London, of counsel), for Appellant.
Before: OAKES, McLAUGHLIN, SACK, Circuit Judges.
BACKGROUND
The events underlying this appeal are set forth at length in the district court's several thorough opinions. See United States v. Livoti, 8 F. Supp.2d 246 (S.D.N.Y. 1998) (Livoti I); United States v. Livoti, 8 F. Supp.2d 250 (S.D.N.Y. 1998) (Livoti II); United States v. Livoti, 22 F. Supp.2d 235 (S.D.N.Y. 1998) (Livoti III); United States v. Livoti, 25 F. Supp.2d 390 (S.D.N.Y. 1998) (Livoti IV). We summarize them here only as necessary to this appeal.
At around 1:30 a.m. on December 22, 1994, then-officer Francis Livoti, of the New York City Police Department ("NYPD"), and three other officers parked their two patrol cars on a street near the South Bronx home of Anthony Baez. Baez and his three brothers were playing football in the street. After two errant passes struck the patrol cars, Livoti yelled and cursed at the brothers, ordering them to go home. After some discussion among themselves, the Baez brothers decided to continue their game, playing in the opposite direction. Before they could continue, however, Livoti again got out of the patrol car, cursing at the brothers and challenging them to a fight. The situation escalated when Baez's brother David openly defied Livoti's orders to leave. Livoti announced that David would be spending Christmas at Rikers Island, cuffed him, and put him in the back of a patrol car.
Livoti then turned to Anthony Baez, who had been protesting his brother's arrest. Livoti pushed Baez across the street and attempted to cuff his hands behind his back. Baez resisted Livoti's efforts to handcuff him behind his back, holding his hands to his chest. Baez's father (who had come out of the house) and brothers then saw Livoti put Baez in a choke hold, hooking the crook of his arm around Baez's neck and pulling Baez upward and backward. Baez's father shouted at Livoti, pleading with him to stop choking his son. After some time, Livoti lowered the by-then limp Baez to the ground and cuffed his hands behind his back. Meanwhile, four additional officers had arrived on the scene in two more patrol cars. Baez remained motionless on the ground until police officers carried him to a patrol car and drove him to a nearby hospital. He was pronounced dead shortly thereafter.
Livoti was indicted in the United States District Court for the Southern District of New York for violating Baez's civil rights in violation of 18 U.S.C. 242. At trial, the government argued that by putting Baez in a choke hold, Livoti violated Baez's right to be free from excessive force. The government introduced: (1) eye-witness testimony of the Baez family describing the confrontation including Livoti's use of a choke hold; (2) medical testimony that Baez died primarily as a result of a choke hold that lasted one minute and rendered Baez unconscious; and (3) proof that Livoti was well aware at the time of the incident that NYPD regulations prohibited choke holds, and that, because of prior complaints of excessive force, Livoti's superiors had specifically warned him to avoid unnecessary confrontations with civilians.
In his defense, Livoti denied that he had used a choke hold, asserting that any choking was unintentional and that he had not caused Baez's injuries or death. He presented testimony of three officers who had been at the scene on December 22, 1994. They contradicted the Baez family, testifying that they did not see anyone put Baez in a choke hold, that Baez was resisting arrest when Livoti handcuffed him, and that Baez was conscious after being handcuffed. In rebuttal, the government called two additional officers who had been present at the confrontation. They testified that Baez was not moving or resisting arrest after he was handcuffed. The jury convicted Livoti.
At sentencing, the district court made five adjustments, enhancements, and departures -- all over Livoti's objection. First, finding that Livoti had recklessly caused Baez's death, the court determined Livoti's base offense level by using the involuntary manslaughter guideline, see U.S.S.G. 2A1.4(a)(2), as applied through the civil rights guideline's cross-reference provision, see U.S.S.G. 2H1.1(a)(1). Second, the court applied the civil rights guideline's six-level enhancement for violations committed by public officials or those acting "under color of law," see 2H1.1(b)(1). Third, the court imposed a two-level obstruction of justice enhancement, see U.S.S.G. 3C1.1, because it found, inter alia, that Livoti had called police officers as witnesses in his trial, knowing that they would commit perjury. Fourth, the district court granted the government's motion for a "horizontal" upward departure of one point in Livoti's criminal history category ("CHC") because it found that Livoti's CHC did not adequately reflect the seriousness of his past criminal conduct. Finally, the district court granted the government's request for a "vertical" upward departure in Livoti's offense level pursuant to U.S.S.G. 5K2.0. The court found that aggravating factors took Livoti's offense outside the heartland of civil rights cases and upwardly departed four levels.
The final result of this calculus was an offense level of 26 and a CHC of III, yielding a sentencing range of 78 to 97 months. Judge Scheindlin sentenced Livoti to 90 months.
Livoti now appeals his conviction and sentence.
During oral argument, Livoti's central point was that the district court abused its discretion by granting the vertical upward departure of four steps in his offense level. Before considering that challenge, however, we briefly address Livoti's other arguments raised in his brief against his conviction and sentence.
Livoti argues that: (A) the district court should have granted him a change of venue because of negative pretrial publicity; (B) the district court committed various evidentiary errors that warrant reversal; (C) the evidence was insufficient to support his conviction; and (D) the district court committed a number of other sentencing errors.
We reject Livoti's argument that the district court was required to grant him a change of venue pursuant to Fed. R. Crim. P. 21(a) because of negative pretrial publicity. We will not reverse the district court's decision absent an abuse of discretion. See United States v. Maldonado-Rivera, 922 F.2d 934, 966-67 (2d Cir. 1990). Although Livoti complains of the "overwhelming and ever-escalating negative publicity" surrounding his case, he provided no specific examples of such publicity when he moved for a change of venue. Because we agree with the district court that Livoti failed to show a "reasonable likelihood" that pretrial publicity would prevent a fair trial, we find no abuse of discretion. Id. at 966-67 (quoting Sheppard v. Maxwell, 384 U.S. 333, 363 (1966)).
Nor do we find any abuse of discretion in the various evidentiary rulings challenged by Livoti. See United States v. Arena, 180 F.3d 380, 400 (2d Cir. 1999). Livoti argues that the district court improperly: (1) admitted "similar act" evidence that Livoti had choked another arrestee, Steven Resto, in the past; (2) restricted Livoti's cross-examination of Resto; and (3) elicited prejudicial testimony from a government rebuttal witness.
Judge Scheindlin's decision to admit proof of Livoti's assault on Resto was not an abuse of discretion. Evidence of prior criminal conduct is admissible under Federal Rules of Evidence 404(b) and 403 if it is relevant to an issue at trial other than the defendant's character, and if its probative value is not substantially outweighed by the risk of unfair prejudice. See United States v. Pitre, 960 F.2d 1112, 1120 (2d Cir. 1992). The testimony that Livoti choked Resto did not violate Rule 404(b) or 403 because it was relevant to rebut Livoti's assertion that he choked Baez unintentionally. Furthermore, the evidence did not involve conduct more inflammatory than the charged crime, and the district court gave a careful limiting instruction. See id.
Nor did the district court unduly restrict the cross-examination of Resto. Livoti was permitted to elicit that Resto once had been a defense alibi witness in an unrelated homicide case and that the case resulted in a conviction; however, the district court precluded inquiry into the details of the case. Because this limitation in no way hampered the jury's ability to make a "discriminating appraisal" of Resto's credibility, it was not an abuse of discretion. United States v. Rosa, 11 F.3d 315, 336 (2d Cir. 1993).
Finally, we need not address Livoti's argument that the district court improperly elicited prejudicial testimony from a government rebuttal witness. Because Livoti made no timely objection to the district court's questions, and because we find no plain error, see Fed. R. Crim. P. 52(b), we decline to review this claim.
Similarly, we reject Livoti's argument that the evidence was insufficient to establish his guilt and that the district court should...
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