U.S. v. Christian

• Citation: 342 F.3d 744
• Decision Date: 19 August 2003
• Docket Number: No. 02-2528.,02-2528.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Desmond CHRISTIAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

342 F.3d 744

UNITED STATES of America, Plaintiff-Appellee, v. Desmond CHRISTIAN, Defendant-Appellant.

No. 02-2528.

United States Court of Appeals, Seventh Circuit.

ARGUED February 21, 2003.

DECIDED August 19, 2003.

Deirdre A. Durborow (Argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

Renee E. Schooley, Lawrence J. Fleming (Argued), Office of the Federal Public Defender, East St. Louis, IL, for Defendant-Appellant.

Before CUDAHY, MANION and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Desmond Christian was a police officer who attacked a suspect after the man hurled a hateful racial epithet at him. Two of Christian's fellow officers held the suspect while Christian punched him and kneed him in the face. The other officers eventually pled guilty to misdemeanor charges of deprivation of rights under color of law in violation of 18 U.S.C. § 242. Christian was charged with a felony under that same section and was subsequently convicted by a jury and sentenced to 33 months' incarceration and 2 years of supervised release. Christian challenges several evidentiary rulings and the sufficiency of the evidence. He also urges us to find that the government should have been estopped from charging him with a felony when it charged his co-defendants with misdemeanors under the same facts. We affirm.

I.

What began as a bar fight ended in criminal charges against both the unruly bar patron and some of the police officers who responded to the call. Desmond Christian worked the night shift for the Kokomo, Indiana police department with fellow officers Jason Hahn and Craig Smith. Shortly after midnight on October 20, 1998, the officers were called to the scene of a fight at the Kokonuts Bar. By the time the officers arrived, other bar patrons had already removed an intoxicated customer named Kenneth Kail from the bar to the parking lot. Kail was argumentative and uncooperative, and eventually Officers Smith and Hahn tackled him and placed him in handcuffs. In order to fully subdue him, Officer Smith sprayed Kail with mace. As another officer drove Kail to the Howard County Jail, Kail began banging his head against the Plexiglas divider that separated the front seat from the back seat in the police cruiser. Officer Smith again sprayed Kail with mace in an effort to subdue him. Once they arrived at the jail, the officers handed Kail over to jail personnel who took him to the showers to wash off the mace.

When Kail finished his shower, jail personnel brought him back to the processing area. Christian was in the processing area filling out paperwork. Hahn and Smith were also present, along with several correctional officers. At some point, Christian and Kail began to exchange words. The taunting escalated until Kail called Christian (who is African-American) a "nigger" as two correctional officers escorted Kail past Christian to a chair. As the two jail officers stood watch next to their prisoner, Kail continued his verbal barrage but remained seated in the chair. Christian, Hahn and Smith pushed the jailers aside and Hahn sprayed mace at Kail. Then, as Hahn and Smith pinned Kail to the chair, Christian forcefully kneed and punched Kail in the face several times. Christian then asked Kail, "Now you think I'm still a nigger now?" Tr. at 266. See also Tr. at 410 (testimony that Christian asked Kail, "Am I still a nigger?").

After the beating, a correctional officer escorted Kail to a holding cell. Kail requested medical attention and an ambulance technician examined him. Christian was present in Kail's cell during the examination. Kail told Christian to leave his cell and Christian refused, commenting that he was free to go anywhere in the jail he wanted. Later that morning, a correctional officer photographed Kail's bruised and swollen face, including a cut on his lip.

Christian, Hahn and Smith failed to mention this assault in their official police reports and denied the incident when interviewed by the internal affairs unit of the police department. Hahn and Smith also lied to a grand jury investigating the incident, and Christian threatened another officer about what would happen if Christian were indicted. Christian was charged with felonious deprivation of civil rights under color of law in violation of 18 U.S.C. § 242. Hahn and Smith were charged with misdemeanor violations of section 242. Both pled guilty to these misdemeanor charges and agreed to cooperate with the government in the prosecution of Christian. Christian exercised his right to a jury trial and was convicted after a three-day trial. The district court sentenced Christian to 33 months' imprisonment and two years of supervised release. He appeals.

II.

On appeal, Christian argues that because the government entered into plea agreements with Smith and Hahn for misdemeanor violations of section 242, the government should have been estopped from presenting evidence of bodily injury at his trial. In the alternative, Christian maintains that those plea agreements constitute an admission by the government that Kail suffered no bodily injury. Christian also challenges the district court's exclusion of certain expert testimony concerning the extent of Kail's injuries. Finally, Christian contends there was insufficient evidence presented to the jury to find that he acted under color of law.

A.

Christian, Hahn and Smith were all convicted of violating 18 U.S.C. § 242, deprivation of rights under color of law. A violation of section 242 may be charged as a misdemeanor or a felony, depending on whether bodily injury results from the acts committed in violation of section 242. Christian argues that the government's plea agreements with Smith and Hahn for misdemeanor charges should estop the government from claiming that Kail suffered any bodily injury. After all, Christian argues, the charges against all three defendants arose from the same incident and Kail either suffered bodily injury or did not. If the government agreed to charge his co-defendants with misdemeanors, then the government must be conceding that Kail suffered no bodily injury. Therefore, Christian maintains, the government must be judicially estopped from claiming bodily injury in his case.

The doctrine of judicial estoppel is intended to protect the integrity of the judicial process. New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). It is an equitable concept providing that a party who prevails on one ground in a lawsuit may not in another lawsuit repudiate that ground. United States v. Hook, 195 F.3d 299, 306 (7th Cir.1999), cert. denied, 529 U.S. 1082, 120 S.Ct. 1707, 146 L.Ed.2d 510 (2000). Judicial estoppel may apply when (1) the later position is clearly inconsistent with the earlier position; (2) the facts at issue are the same in both cases; (3) the party to be estopped convinced the first court to adopt its position; and (4) the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Maine, 532 U.S. at 750, 121 S.Ct. 1808; Hook, 195 F.3d at 306. Christian argues, and the government does not seem to disagree, that the second and third elements are easily met. The prosecutions of Smith and Hahn arose out of the same core set of facts that led to Christian's indictment, establishing the second part of the test. The court accepted the guilty pleas of Smith and Hahn to misdemeanor charges under 18 U.S.C. § 242, and so the third element is met as well. The parties do not address the fourth element but focus their discussion instead on whether the government's position in Christian's case was "clearly inconsistent" with the position it took in the Smith and Hahn cases.

We turn first to the plea agreements themselves. In both Smith's and Hahn's plea agreements, Christian's co-defendants acknowledged that, as a result of the jail house attack, "Kail suffered a bloody lip and pain from the blows." R. 70, Ex. D at 10; R. 70, Ex. E at 9. Thus, both plea agreements acknowledged that Kail suffered bodily injury during the jailhouse altercation. There is therefore nothing factually inconsistent between the plea agreements entered into by Smith and Hahn and the government's charge of a felony against Christian. Christian maintains, however, that the very fact that the government charged Smith and Hahn with misdemeanors indicates that Kail suffered no bodily injury.

Christian's argument seriously misconstrues the purpose and operation of plea agreements. The plea agreements in this case are typical of bargains the government strikes with defendants every day. In exchange for a plea of guilty to the charged offense (or, as occurred here, a lesser offense) and a promise to cooperate with the government in the prosecution of a co-defendant, the government often agrees to dismiss or refrain from bringing additional charges. See Fed.R.Crim.P. 11(c). When a court accepts a plea of guilty, it must determine that there is a factual basis for the plea. Fed.R.Crim.P. 11(b)(3). We take this to mean that the court must find that the facts support the charge; the facts may prove more than what is charged but not less. See, e.g., United States v. Martin, 287 F.3d 609, 621 (7th Cir.2002), cert. denied, 537 U.S. 884, 123 S.Ct. 116, 154 L.Ed.2d 142 (2002) (noting the court may accept a plea agreement that includes dismissal of any charges so long as the court determines that the remaining charges adequately reflect the seriousness of the actual offense behavior and that accepting the agreement will not undermine the statutory purposes of sentencing or the sentencing guidelines). Under the facts recited in Smith's and Hahn's plea agreements, the government could have charged the defendants with either misdemeanor or felony charges of deprivation of rights. Because Smith and Hahn saved the government the expense...