U.S. v. Harris

Decision Date11 June 2002
Docket NumberNo. 00-60465.,00-60465.
Citation293 F.3d 863
PartiesUNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Charles HARRIS, Defendant-Appellant-Cross-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Clay G. Guthridge (argued), U.S. Dept. of Justice, Civil Rights Div., Washington, DC, Paul David Roberts, Asst. U.S. Atty., Oxford, MS, Dennis J. Dimsey, Deputy Chief, U.S. Dept. of Justice, Washington, DC, for United States.

John Dudley Williams (argued), Aberdeen, MS, for Harris.

Appeals from the United States District Court for the Northern District of Mississippi.

Before GARWOOD and WIENER, Circuit Judges, and VANCE,1 District Judge.

GARWOOD, Circuit Judge:

Defendant-Appellant Charles Harris (Harris) appeals his conviction under 18 U.S.C. § 242. The United States of America (the Government) cross-appeals the sentence imposed by the trial court. Harris was convicted in a jury trial of using excessive force during the course of an arrest. The sentencing court imposed a sentence including imprisonment for thirteen months, departing downward from the sentencing range established by the United States Sentencing Guidelines (the Guidelines). We affirm the conviction and the district court's decision to depart downward. This opinion addresses those two issues. For the reasons stated in the separate opinion of Judge Wiener, Judge Vance concurring, a majority of this panel concludes that the extent of the departure has not been adequately justified, and accordingly this court vacates and remands the sentence.

Facts and Proceedings Below

On May 9, 1998, Harris, Chief of Police for the Town of Golden, Mississippi, arrested Geraldo Lopez (Lopez) for public drunkenness. Harris was indicted for using excessive force during the course of the arrest by "willfully" striking Lopez "with a police baton, a dangerous weapon,... resulting in bodily injury" to Lopez, in violation of 18 U.S.C. § 242.2 On February 15, 2000, after a two-day trial, the jury rendered a guilty verdict.

On the evening of the arrest, Lopez, a Mexican citizen, was attending a party at a residence in Golden. Harris was the only Golden officer on duty that night. Responding to a complaint from neighbors, Harris went to the house where the party was in progress and requested that the partygoers quiet down. They said that they would and Harris left. Shortly thereafter, the party got loud again and Harris returned to ask the partygoers to quiet down a second time. After his second visit, Harris placed a radio call to the Tishomingo County Sheriff's Department requesting backup.3 Four Sheriff's Department officers arrived in response to Harris's call for assistance. The noise continued. Harris and three of the officers — Officers Flynt, Trimm, and Stacy — approached the house and warned the revelers that arrests would be made if the party continued to be too noisy. The partygoers again promised to be quiet. Harris and the other officers left the house and went to a parking lot about a block away. About five minutes later, the officers heard the noise from the party resume and they returned to the house and began making arrests.

Harris arrested Lopez. The precise sequence of events from that point onward are somewhat in dispute. The testimony indicates that Lopez initially submitted to being handcuffed behind his back and to being placed in the back seat of Harris's patrol car.4 The patrol car had a plexiglass barrier, reinforced with metal brackets and wire mesh, that separated the back seat from the front seat passenger compartment. Harris closed the car door, left Lopez alone in the back seat, and began walking back toward the house. In his trial testimony, Lopez conceded that he was drunk and that he began to thrash about in the back seat. Officers Flynt and Stacy testified that Lopez began kicking at the windows of the car. The trial testimony further established that, at this point, Harris returned to the car and opened the door near where Lopez's feet were. Lopez continued to kick at Harris. Harris told Lopez to stop kicking him and Harris struck Lopez in the shins with a police baton at least once.

After Harris closed the car door again, Lopez resumed thrashing about the car and started banging his head against the plexiglass divider. Harris opened the car door again and, according to the testimony, again began to strike Lopez with the baton. Gary Pounders, a neighbor and the only witness called by the defense, partially corroborated the testimony of Government witnesses.5 Officer Flynt testified that Harris landed blows on Lopez's face and head. Lopez testified that Harris hit him on the left temple. FBI agent Summerlin testified that Harris, during a non-custodial interview regarding the incident, had admitted hitting Lopez in the head. Officer Stacy testified that he stopped Harris from hitting Lopez because Harris "had lost his composure as a law enforcement officer." Officer Trimm testified that he approached the car and attempted to reach in and stop Lopez from banging his head. Trimm testified that he never saw Harris strike Lopez but that Lopez had blood on his head when Trimm approached the car. Lopez kicked Trimm in the groin and Trimm sprayed Lopez with pepper spray in an attempt to subdue him. Lopez continued to thrash violently. Finally, a woman who had attended the party was able to calm Lopez down.

It was determined that Lopez should be taken to the hospital because he was bleeding from the head. Ambulance operator and police officer Mike Kemp arrived on the scene. Officer Kemp testified that Harris told him that he had "knocked the s-h-i-t" out of Lopez. Kemp refused to transport Lopez in his ambulance unless an officer accompanied Lopez. Harris opted to drive Lopez to the hospital himself.

Registered Nurse Cummings was an emergency room nurse who treated Lopez at the hospital. Cummings testified that Lopez presented with two separate injuries on his head, a laceration and a hematoma. She further testified that she could not say whether or not these injuries could have been caused by a blunt instrument like a police baton. X-rays and a CT scan of Lopez's head were negative. His laceration was sutured, he was given a tetanus shot and was discharged just under two hours after his arrival at the hospital. There is no evidence he subsequently sought any further medical attention.

The district court held a sentencing hearing on June 14, 2000. The Presentence Investigation Report calculated the total offense level (including enhancements) to be 29 and a criminal history category of I. Under the Guidelines, these figures provided a sentencing range of 87 to 108 months' imprisonment. The sentencing court found that Lopez's wrongful conduct had significantly contributed to provoking the offense behavior and that a downward departure was warranted pursuant to U.S.S.G. § 5K2.10. The court sentenced Harris to a term of thirteen months in prison, two years' supervised release and a $5,000 fine.

Harris appeals contending that the evidence is insufficient to support his conviction. The Government cross-appeals, contending that the district court erred in determining that downward departure was justified and that even if departure were warranted the extent thereof here granted was unreasonably large.

Discussion
I. Standard of Review

We review the jury's finding of guilt under a standard that is highly deferential to the verdict:

"The standard of review for determining whether there was sufficient evidence to convict a defendant is whether the evidence, when reviewed in the light most favorable to the government with all reasonable inferences and credibility choices made in support of a conviction, allows a rational fact finder to find every element of the offense beyond a reasonable doubt. The evidence is viewed in the light most favorable to the verdict, accepting all credibility choices and reasonable inferences made by the trier of fact which tend to support the verdict." United States v. Asibor, 109 F.3d 1023, 1030 (5th Cir.1997) (internal citations omitted).

We review the sentencing court's decision to depart downward from the Guidelines under a deferential abuse of discretion standard. Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 2046, 135 L.Ed.2d 392 (1996). The district court's interpretation of the Guidelines is a question of law that this court reviews de novo. United States v. Clayton, 172 F.3d 347, 353 (5th Cir.1999). The sentencing court's factual findings are reviewed for clear error and this court gives due deference to the sentencing court's application of the Guidelines to the facts. 18 U.S.C. § 3742(e)(4).

II. Sufficiency of the Evidence

Harris argues that the evidence was insufficient for the jury to find him guilty of using excessive force in violation of 18 U.S.C. § 242. Both here and in the trial court, the defense's argument has centered on the evidence pertaining to Lopez's injuries. Harris contends that the Government did not prove that the laceration or the hematoma was caused by Harris's striking Lopez with a baton rather than by Lopez's striking his own head against parts of the car. It is not entirely clear whether this is an argument that the Government did not prove that Harris actually hit Lopez in the head or an argument that the Government did not prove that Harris caused any sufficient injury to Lopez. In either case, the argument is ultimately unavailing and we affirm the jury's finding of guilt.

Two witnesses, Lopez and Officer Flynt, testified that they observed Harris strike Lopez in the head. A third witness, Agent Summerlin, testified that Harris admitted striking Lopez in the head. These pieces of direct evidence were corroborated by the circumstantial evidence provided by Officers Trimm and Stacy; Trimm and Stacy each testified that they observed Harris moving about in the car and then observed Lopez bleeding...

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