299 F.3d 1130 (9th Cir. 2002), 01-50081, U.S. v. Geston

Docket Nº01-50081
Citation299 F.3d 1130
Party NameU.S. v. Geston
Case DateAugust 13, 2002
CourtUnited States Courts of Appeals, United States Court of Appeals (9th Circuit)

Page 1130

299 F.3d 1130 (9th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jack Alan GESTON, Defendant-Appellant.

United States of America, Plaintiff-Appellant,

v.

Jack Alan Geston, Defendant-Appellee.

Nos. 01-50081, 01-50163.

United States Court of Appeals, Ninth Circuit

August 13, 2002

Argued and Submitted March 6, 2002.

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Karyn H. Bucur, Laguna Hills, California, for the defendant-appellant.

Jennifer Levin, Department of Justice, Washington, DC, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Thomas J. Whelan, District Judge, Presiding. D.C. No. CR-99-03536-TJW.

Before BROWNING, THOMAS and RAWLINSON, Circuit Judges.

OPINION

RAWLINSON, Circuit Judge. Defendant/Appellant Jack A. Geston ("Geston") appeals his conviction for violations of 18 U.S.C. § 242 (unreasonable use of force under color of law) and 18 U.S.C. §§ 113(a)(3), (6) and (7) (assault with a dangerous weapon resulting in serious bodily harm). The government filed a cross-appeal of the sentence on the basis that the court erred in not enhancing Geston's sentence because he committed the offense while acting as a police officer.

BACKGROUND

Geston, a police officer with the Department of Defense ("DOD"), was charged with assaulting Seaman Apprentice Jose Hernandez III ("Hernandez") on board the U.S.S. Rentz.

Geston first encountered Hernandez at a fast food restaurant. Having failed a field sobriety test, Hernandez was handcuffed and taken to the police station by Geston and his partner for the evening, Petty Officer William Garrett ("Garrett"). Hernandez was later returned to his ship by the two officers.

Upon entering the ship, Geston and Garrett escorted Hernandez to the podium where Petty Officer Holden ("Holden"), the officer of the deck, was stationed. As Hernandez proceeded into the ship's passageway, he called Geston a "stupid fat fuck." There is conflicting testimony as to what happened next.

Hernandez' Version:

Hernandez was pushed from behind and "hit the right side of the ship's wall." As he turned around, Geston pushed and punched him, resulting in Hernandez pushing back at Geston, causing both of them to fall to the ground. Hernandez felt something hard hit his head, causing him to bleed. Hernandez responded by punching Geston once. Geston then "put Hernandez down," resulting in Hernandez lying face up on the ground. Geston straddled Hernandez and placed his baton close to Hernandez' throat. Hernandez attempted to take the baton off his throat because of breathing difficulty. Petty Officer Groot ("Groot") held Hernandez' hand while another person (unidentified) grabbed Hernandez. Hernandez was turned over face down and Geston held Hernandez' face on the non-skid (the floor of the ship). When Hernandez was instructed to place his hands behind his back, he had trouble complying because his shoulder hurt from a prior incident. Hernandez remembers pressure being applied to his back, but could not identify the source of the pressure. Paramedics removed Hernandez from the ship on a stretcher and transported him to the hospital. After the incident, Hernandez experienced a sore shoulder, an achy back, a painful jaw and a sore throat.

Geston's Version:

After Hernandez swore at Geston, Geston placed his hand out with his fingers open and said "Hey." Hernandez immediately swung around and hit Geston in the face with a closed fist. Geston tripped as he tried to grab Hernandez, and fell to the ground with Hernandez on top of him. Hernandez then began hitting Geston in the face and wherever else he could connect. At that point, Geston became concerned

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for his life because his gun was loaded and the safety was off. During the altercation, Geston was yelling "get this guy off of me." As Garrett was attempting to hold Hernandez down, Hernandez broke away. Hernandez charged Geston, and landed on the ground. Hernandez continued to swing his arms at Geston and hit him in the face continuously while exclaiming "you asshole, get off me you asshole." In order to restrain Hernandez, Geston placed him on the ground and lay on top of him. Geston drew his baton in order to gain control. He delivered three blows to Hernandez, one accidently hitting him in the head. Upon delivery of the third blow, Hernandez knocked the baton out of Geston's hand. Petty Officer Hamblin returned Geston's baton to him. Geston then hollered "[i]s anybody going to help me?" Geston placed the baton across Hernandez' chest and Hernandez began growling and spitting at Geston's face. Geston attempted to put the baton under Hernandez' chin in order to stop Hernandez from spitting on him. As Geston sat up on his knees, Hernandez kicked Geston in the ear.

Additional officers arrived on the ship, and Officer Raftis ("Raftis") and DOD Lieutenant Sims ("Sims") assisted Geston in getting the situation under semi-control. Geston placed his foot on Hernandez' back to keep him down. Raftis regained control of Hernandez' hands and feet and Geston was able to handcuff him. After the incident, Geston returned to the police station and then went to the hospital with Officer Capers to have his injuries checked. Geston had a cut above his ear, scratches, and soreness to his elbows, shoulders, and knees.

The treating physician at the hospital, Dr. Woodson, testified that Hernandez was loud, combative and verbally uncooperative, but calmed down quickly. Dr. Woodson treated Hernandez for a scalp laceration (three centimeters), and shoulder and back pain. Dr. Woodson noted Hernandez had an abrasion on his right cheek and neck along with some bruising. Hernandez did not have any broken bones or tenderness in the cervical spine. Hernandez also had extensive bruising in the chest area, but x-rays revealed no broken bones. His blood alcohol level was 0.087. The nurse's report noted Hernandez could speak in full sentences, an indication that Hernandez had no trouble breathing.

Geston's first trial resulted in a mistrial, with the jury unable to reach a verdict. Following a second jury trial, Geston was convicted of both charges.

DISCUSSION

1) Allegations of False Testimony

Geston asserts that the government allowed prosecution witnesses Sims and Officer Carr ("Carr") to testify falsely that Garrett carried a wooden baton on November 26, 1997, rather than a black metal retractable baton. Geston contends that the government highlighted this false testimony through Garrett's cross-examination, Carr's rebuttal testimony, and closing argument.

Geston proffers the following evidence that Sims' and Carr's testimony was false and the government knew it was false: (1) Sims signed the Evidence Property Custody Receipt indicating Garrett had a retractable black baton on November 26, 1997; (2) the DNA blood analysis performed by the FBI on the black retractable baton Garrett surrendered revealed that Hernandez was a potential contributor of the blood; and (3) FBI Special Agent Jeffrey M. Thurmond took possession of Garrett's black retractable baton on February 24, 2000.

Because Geston failed to raise this issue at trial, we review for plain error. United States v. Tank Huu Lam, 251 F.3d 852, 861 (9th Cir. 2001). "To secure

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reversal under this standard, [Geston] must prove that: (1) there was 'error'; (2) the error was plain; and (3) the error affected 'substantial rights.'" United States v. Sanchez, 176 F.3d 1214, 1219 (9th Cir. 1999) (quoting United States v. Turman, 122 F.3d 1167, 1170 (9th Cir. 1997)) (citing United States v. Olano, 507 U.S. 725, 730-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). "Under this standard, a conviction can be reversed only if, viewed in the context of the entire trial, the impropriety seriously affected the fairness, integrity, or public reputation of judicial proceedings, or where failing to reverse a conviction would result in a miscarriage of justice." Tank Huu Lam, 251 F.3d at 861 (citation omitted).

It is a prosecutor's duty to "refrain from knowingly presenting perjured testimony and from knowingly failing to disclose that the testimony used to convict defendant was false." United States v. Aichele, 941 F.2d 761, 766 (9th Cir. 1991) (internal quotation marks and citation omitted); see also United States v. Endicott, 869 F.2d 452, 455 (9th Cir. 1989). However, the evidence proffered by Geston does not establish that the government knew, or should have known, that Sims' and Carr's testimony was false. See United States v. Sherlock, 962 F.2d 1349, 1364 (9th Cir. 1989). At most, two conflicting versions of the incident were presented to the jury. It was within the province of the jury to resolve the disputed testimony. See United States v. Awkard, 597 F.2d 667, 671 (9th Cir. 1979) (recognizing that credibility determinations are for the jury). The district court did not commit plain error in allowing the prosecution to present the testimony of Sims and Carr to the jury.

2) Cross-Examination of Witnesses

Geston asserts that the government committed...

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120 practice notes
  • 129 P.3d 1144 (Hawai'i App. 2005), 26234, State v. Stanley
    • United States
    • Hawaii Court of Appeals of Hawai'i Intermediate
    • November 16, 2005
    ...of the defendant's "bad acts." Such evidence is clearly inadmissible. Mayo, 528 F.Supp. at 837. In United States v. Geston, 299 F.3d 1130 (9th Cir.2002), Geston, a police officer with the Department of Defense, was involved in an altercation with Seaman Apprentice Hernandez aboard......
  • Boswell v. Hedgpeth, 040912 CAEDC, 2:10-cv-1076-GEB TJB
    • United States
    • United States District Courts. 9th Circuit. Eastern District of California
    • April 9, 2012
    ...inconsistencies in the evidence do not constitute the knowing use of perjured testimony by the prosecutor. See United States v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002). Rather, it is within the province of the jury to resolve the disputed testimony. See id. A factual basis for attributi......
  • Torres v. State, 102009 TXCA14, 14-08-00073-CR
    • United States
    • Texas Court of Appeals of Texas
    • October 20, 2009
    ...conduct did not rise to a level warranting a mistrial. Appellant, however, relies primarily on a passage from United States v. Geston, 299 F.3d 1130 (9th Cir. 2002). Geston was a Department of Defense police officer accused of assaulting a seaman apprentice with his baton. At issue was the ......
  • Torres v. State, 102009 TXCA14, 14-08-00072-CR
    • United States
    • Texas Court of Appeals of Texas
    • October 20, 2009
    ...conduct did not rise to a level warranting a mistrial. Appellant, however, relies primarily on a passage from United States v. Geston, 299 F.3d 1130 (9th Cir. 2002). Geston was a Department of Defense police officer accused of assaulting a seaman apprentice with his baton. At issue was the ......
  • Request a trial to view additional results
120 cases
  • 129 P.3d 1144 (Hawai'i App. 2005), 26234, State v. Stanley
    • United States
    • Hawaii Court of Appeals of Hawai'i Intermediate
    • November 16, 2005
    ...of the defendant's "bad acts." Such evidence is clearly inadmissible. Mayo, 528 F.Supp. at 837. In United States v. Geston, 299 F.3d 1130 (9th Cir.2002), Geston, a police officer with the Department of Defense, was involved in an altercation with Seaman Apprentice Hernandez aboard......
  • Boswell v. Hedgpeth, 040912 CAEDC, 2:10-cv-1076-GEB TJB
    • United States
    • United States District Courts. 9th Circuit. Eastern District of California
    • April 9, 2012
    ...inconsistencies in the evidence do not constitute the knowing use of perjured testimony by the prosecutor. See United States v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002). Rather, it is within the province of the jury to resolve the disputed testimony. See id. A factual basis for attributi......
  • Torres v. State, 102009 TXCA14, 14-08-00073-CR
    • United States
    • Texas Court of Appeals of Texas
    • October 20, 2009
    ...conduct did not rise to a level warranting a mistrial. Appellant, however, relies primarily on a passage from United States v. Geston, 299 F.3d 1130 (9th Cir. 2002). Geston was a Department of Defense police officer accused of assaulting a seaman apprentice with his baton. At issue was the ......
  • Torres v. State, 102009 TXCA14, 14-08-00072-CR
    • United States
    • Texas Court of Appeals of Texas
    • October 20, 2009
    ...conduct did not rise to a level warranting a mistrial. Appellant, however, relies primarily on a passage from United States v. Geston, 299 F.3d 1130 (9th Cir. 2002). Geston was a Department of Defense police officer accused of assaulting a seaman apprentice with his baton. At issue was the ......
  • Request a trial to view additional results

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