246 F.3d 204 (2nd Cir. 2001), 00-1386, United States v Velazquez

Docket Nº:Docket Nos. 00-1386(L), -1407(CON), -1425(CON)
Citation:246 F.3d 204
Case Date:April 12, 2001
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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246 F.3d 204 (2nd Cir. 2001)




Docket Nos. 00-1386(L), -1407(CON), -1425(CON)

United States Court of Appeals, Second Circuit

April 12, 2001

Argued: Dec. 7, 2000

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Lawrence V. Carra', Mineola, N.Y. (Dennis M. Lemke, Mineola, N.Y., on

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the brief), for defendant-appellant Velazquez.

Richard J. Barbuto, Mineola, N.Y. (Alyse Wolfson, paralegal, Mineola, N.Y., on the brief), for defendant-appellant Bergen.

Peter J. Tomao, Garden City, N.Y., on the brief, for defendant-appellant Regnier.

Sanford M. Cohen, Asst. U.S. Atty., Brooklyn, N.Y. (Loretta E. Lynch, U.S. Atty., Emily Berger, Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for appellee.

Before: NEWMAN, CABRANES, and STRAUB, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

This appeal by three prison guards convicted of civil rights violations concerns an outrageous episode in which two of the guards severely beat a prisoner, causing his death, and a third guard participated in a cover-up of the beating. The principal issue is whether the "underlying offense," U.S.S.G. § 2H1.1(a)(1), for purposes of sentencing the two guards who committed the fatal assault was voluntary manslaughter, as found by the District Court; involuntary manslaughter, as urged by the Appellants; or second-degree murder, as suggested by the Government. That issue also concerns the sentence of the third guard, who was convicted of being an accessory after the fact. Edward Velazquez, Patrick Regnier, and Joseph Bergen appeal from judgments entered in the United States District Court for the Eastern District of New York (Jacob Mishler, District Judge), convicting them of violating 18 U.S.C. §§ 241, 242. Velazquez and Regnier pled guilty; Bergen was convicted after a jury trial. Bergen challenges his conviction; all three Appellants challenge their sentences.

We conclude that Bergen's conviction should be affirmed and that the sentences of all three Appellants must be vacated, primarily because the District Court mischaracterized the mental states distinguishing murder from voluntary manslaughter. We therefore remand for resentencing.


Since the facts bear both on Bergen's claim that the evidence was insufficient to support the jury's verdict and on all the Appellants' challenges to their sentences, we set them forth in some detail, recounting them in a light favorable to both the jury's verdict in Bergen's case and Judge Mishler's sentencing findings as to all three Appellants.

1. The Assault and Aftermath

Thomas Pizzuto, aged 38, was sentenced to Nassau County Correctional Center (NCCC) for 90 days, for driving under the influence of methadone. Pizzuto, a recovering heroin addict, was placed in a cell on the "Observation Tier," used to house prisoners for their first three days in confinement until their assignment to general population. On his first full day in jail, he complained to any who would listen that he needed methadone. When the prisoners on the Observation Tier were let out of their cells for a brief interval after lunch, Pizzuto asked two corrections officers, including Defendant-Appellant Velazquez, for methadone. Velazquez told Pizzuto to "shut the fuck up" and to get out of the shower area. Pizzuto responded, "Fuck you, you are not going to tell me what to do." Velazquez then ordered all the inmates back to their cells. They all complied, including Pizzuto, who paused for just "[a] couple of seconds" before entering his cell as ordered.

Velazquez told his immediate supervisor, Gary Pincus, that Pizzuto had not immediately heeded the order to return to his cell,

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and said he would "pay him a visit." He and another corrections officer, Defendant-Appellant Regnier, then put on rubber surgical gloves (the required practice in the NCCC when officers might come into contact with inmates), opened the security gate, and entered the inmate walkway. Pincus directed another officer, Ivano Bavaro, to join them. Bavaro, who later signed a cooperation agreement, testified at the trial about what happened next.

Velazquez and Regnier entered Pizzuto's cell, with Bavaro remaining at the cell opening as a look-out. Pizzuto was sitting on his bunk. A brutal beating ensued. Velazquez punched Pizzuto in the eye with a closed fist, pushed him into a prone position, and continued punching him. At the same time, Regnier punched Pizzuto in the lower part of his back and kneed him on his lower back and legs. Pizzuto never fought back. The beating lasted for about one minute. Pizzuto was left moaning in his cell. After the beating, Velazquez and Regnier boasted about the "good shots" each had "gotten in."

A short while later, Defendant-Appellant Bergen came on duty; he was then a corporal (supervisor) at the NCCC. It fell to Bergen to write the required report about Pizzuto's injuries. Pincus told Bergen about the incident, and Bergen asked, "Do you want me to write a report to cover you guys up"? Velazquez informed Bergen that a prisoner had cursed at Velazquez and that "we went down and took care of him." Pincus told Bergen, "My guys had a problem with D-3 [the Observation Tier]. And they smacked him around a little." Later that day, Bergen stopped in front of Pizzuto's cell and asked him which inmates had injured him. Pizzuto answered that it was "your guys," i.e., corrections officers.

Later that afternoon, Bergen told Pincus that Pizzuto had told Bergen that he had slipped and fallen in the shower. Bergen said he would write a report about the slip and fall. He prepared a false report, attributing Pizzuto's injuries to a slip and fall, and got Pizzuto to sign the report.

Pizzuto then walked on his own power to the NCCC Medical Unit, was treated for minor injuries, and then returned the same night to his cell. No serious damage was discovered on this visit to the doctor, although Pizzuto was badly bruised on his back and face. These bruises would become particularly gruesome, since Pizzuto was generally in poor health, with a low platelet count, which caused him to bruise easily.

Three days later, Pizzuto collapsed in his cell. Until this point, he had shown no ill effects from the assault, apart from the bruises, which had been getting bigger and more discolored. After regaining consciousness, Pizzuto was taken by ambulance to the hospital, where a CAT scan revealed that his spleen was either lacerated by the assault or infarcted (i.e., contained dead tissue for reasons unrelated to the assault). The doctor who examined Pizzuto opined that the spleen was probably lacerated by the assault, because of the bruise on the victim's body in the area over the spleen. Pizzuto spent two nights in the intensive care unit, and was then declared fit to return to the jail's normal medical center. A few hours after his return to the center, and five days after being assaulted, Pizzuto collapsed again. He was found naked, unconscious, and without a pulse on the ward-room floor of the medical center. CPR was administered, but he died without ever regaining consciousness.

The Nassau County Medical Examiner, who performed an autopsy, determined that Pizzuto died from internal bleeding

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due to a ruptured spleen. The spleen rupture did not occur until just before Pizzuto's death, but was caused, the medical examiner concluded, by a blunt force injury sustained three to seven days before death. The medical examiner declared the death a homicide. In his opinion, Pizzuto's final collapse and death resulted from the spleen rupture, which resulted from the beating.1 A forensic pathologist for the defense agreed that the death was caused by the rupture of Pizzuto's spleen "due to blunt force trauma." He also opined that the spleen had become enlarged to five or six times normal weight because of liver disease and that "[w]hen a spleen becomes abnormally enlarged, it will be unprotected and at risk for injury even from a minor blunt force impact."

2. The Indictments, the Trial, and the Sentencing

The indictment charged Regnier and Velazquez with violating 18 U.S.C. §§ 241 and 242 by depriving Pizzuto of his right "not to be subjected to cruel and unusual punishment, by one acting under color of law, resulting in bodily injury and death." Sections 241 and 242 provide that, if death results from the acts that violate these statutes, the maximum punishments are life imprisonment or the death penalty. Bergen was indicted as an accessory after the fact under 18 U.S.C. § 3, which specifies a maximum penalty of fifteen years if the maximum punishment for the accessory's principal is life imprisonment or the death penalty.

Regnier and Velazquez pled guilty; Bergen went to trial. At their plea allocutions, Regnier and Velazquez initially gave evasive answers when asked whether their conduct "resulted in" Pizzuto's death, as the indictments alleged. After Judge Mishler began to express doubts that the allocutions would support the guilty pleas, both Regnier and Velazquez conceded that their conduct resulted in Pizzuto's death.

At Bergen's trial, he admitted the assault and its causal connection to Pizzuto's death, but unsuccessfully tried to persuade the jury that his report truthfully reflected the circumstances that he believed to have existed.

At the sentencing of all three Appellants, Judge Mishler turned initially to U.S.S.G. §2H1.1, which instructs a judge sentencing for criminal violations of civil rights to apply "the offense level from the offense guideline applicable to any underlying offense." Id. § 2H1.1(a)(1). The Government contended that the underlying offense was second-degree murder, see 18 U.S.C. § 1111(a) (any killing with "malice aforethought" not within statutory circumstances constituting first-degree murder), for which the base offense...

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