U.S. v. Disantis

• Decision Date: 04 May 2009
• Docket Number: No. 07-3692.,07-3692.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James DiSANTIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

565 F.3d 354

UNITED STATES of America, Plaintiff-Appellee, v. James DiSANTIS, Defendant-Appellant.

No. 07-3692.

United States Court of Appeals, Seventh Circuit.

Argued September 18, 2008.

Decided May 4, 2009.

Erik Hogstrom (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Alexander M. Salerno (argued), North Riverside, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and SYKES and TINDER, Circuit Judges.

TINDER, Circuit Judge.

A jury convicted police officer James DiSantis of depriving a suspect's right to be free from unreasonable seizure, in violation of 18 U.S.C. § 242. On appeal, DiSantis raises several challenges to the jury instructions given at his trial. Finding no reversible error in the instructions, we affirm the conviction.

I. Background

On September 3, 2003, DiSantis, an officer of the Cicero, Illinois Police Department, passed Jennifer Pine while driving through Chicago. DiSantis knew of prior criminal activity by Pine, as well as by her two passengers, Stephen Roden and Robert Bertucci, and suspected that Pine was either driving a stolen vehicle or heading to buy drugs. Acting on this hunch, DiSantis followed Pine and pulled her over on Central Avenue. According to Pine's testimony, DiSantis pulled her out of the car by the hair and struck her multiple times in the head. DiSantis denied pulling Pine's hair or striking her, testifying that he only raised his voice during the course of the traffic stop.

While this incident was transpiring, Hector Montes passed DiSantis's and Pine's stopped cars and saw DiSantis striking Pine. Hector continued south on Central Avenue to his home, where he picked up his brother, Richard Montes. The Montes brothers then drove back north on Central Avenue on their way to view a construction project at Millennium Park, which Richard planned to record with his video camera. When they passed the point of the traffic stop, Hector and Richard saw that DiSantis and Pine were still at the scene, but now joined by a second police car driven by Joseph Melone, another Cicero police officer who worked under DiSantis.

The Montes brothers pulled into a parking lot across from the traffic stop, and Richard attempted to record the incident with his video camera. After a few minutes, Hector and Richard decided to leave the scene and continued on Central Avenue. But by that time, DiSantis and Melone had spotted Hector's SUV, and both officers testified that they thought that the video camera that Richard had pointed out of the passenger window was actually a gun. The officers accordingly pursued and pulled Hector over at a nearby hospital parking lot.

DiSantis approached the passenger side of Hector's SUV. According to the Montes brothers, DiSantis immediately went up to the passenger window and wrestled the video camera away from Richard. The Montes brothers further testified that DiSantis began screaming at them and demanding the camera's "memory stick." After Hector told DiSantis that he did know anything about the memory stick, DiSantis struck Hector with the camera across the face and again on the head. DiSantis then threw the camera on the ground and stepped on it. DiSantis also conducted a pat-down search of both men and squeezed their genitals.

After finding a bullet magazine in Hector's SUV, DiSantis arrested Hector for unauthorized possession of ammunition and took him to the Cicero police station. Hector was released later that evening, after which he went to the hospital. DiSantis filed a police report on the incident and submitted Richard's video camera as evidence.

Based on these events, the government charged DiSantis with willfully depriving Pine and Hector of their constitutional right to be free from unreasonable seizure, in violation of 18 U.S.C. § 242.¹ The case proceeded to a six-day jury trial at which several witnesses, including DiSantis, testified about the Pine and Montes traffic stops. The government capably impeached DiSantis's testimony using the police report that he filed on the Montes incident. For example, after DiSantis denied grabbing Richard's video camera, the government read a portion of DiSantis's report stating that "Hector Montes, was clutching the ... video camera" and that "DiSantis removed the camera from the suspect by force." The government also noted that DiSantis's report catalogued the camera as "damaged," suggesting that DiSantis was lying when he testified that he had not deliberately stepped on the camera.

Following the presentation of evidence, the district court held a jury instructions conference and reviewed the parties' proposed instructions. Citing the inconsistencies between DiSantis's testimony and his police report, the government requested an instruction that the jury could consider DiSantis's prior inconsistent statements for their truth, not merely for assessing DiSantis's credibility. The court agreed and gave, over DiSantis's objection, the government's proposed instruction on the substantive use of DiSantis's prior inconsistent statements. The court also gave the government's proposed instructions defining the "bodily injury" that triggers an enhanced maximum sentence under 18 U.S.C. § 242, as well as the "reasonable force" that an officer may justifiably use against a suspect. Finally, the court rejected DiSantis's request for a "missing witness" instruction regarding Robert Bertucci and Steven Roden, potential government witnesses who, according to DiSantis, were controlled by the government and unavailable to the defense.

The jury found DiSantis not guilty of violating Pine's constitutional rights but guilty of violating Hector's rights.² The district court imposed a sentence of 66 months' imprisonment. On appeal, DiSantis challenges the jury instructions on the use of his prior inconsistent statements, the "bodily injury" element of § 242, and the "reasonable force" that DiSantis could justifiably use against Pine and Hector. DiSantis also challenges the district court's refusal to give his proposed "missing witness" instruction.

II. Discussion

We review de novo a district court's decision to give or refuse a jury instruction "when the underlying assignment of error implicates a question of law," but "general attacks on the jury instructions are reviewed for an abuse of discretion." United States v. Macedo, 406 F.3d 778, 787 (7th Cir.2005) (citation omitted). The district court "is afforded substantial discretion with respect to the precise wording of instructions so long as the final result, read as a whole, completely and correctly states the law." United States v. Gibson, 530 F.3d 606, 609 (7th Cir.2008) (quoting United States v. Lee, 439 F.3d 381, 387 (7th Cir.2006)), cert. denied, 129 S.Ct. 1386 (2009). "Reversal is proper only if the instructions as a whole are insufficient to inform the jury correctly of the applicable law and the jury is thereby misled." United States v. Madoch, 149 F.3d 596, 599 (7th Cir.1998).

A. Prior Inconsistent Statements

Based on the inconsistences between DiSantis's testimony and his police report, the district court instructed the jury that they could consider DiSantis's prior inconsistent statements as substantive evidence. The given instruction provided:

A statement made by the defendant before trial that is inconsistent with the defendant's testimony here in court may be used by you as evidence of the truth of the matters contained in it, and also in deciding the truthfulness and accuracy of the defendant's testimony at trial.

This instruction is substantively identical to Instruction 3.10 from the Federal Criminal Jury Instructions of the Seventh Circuit. Fed.Crim. Jury Instr. 7th Cir. 3.10 (1999). (Although not pre-approved by the Seventh Circuit Judicial Council for use in any particular case, these published Circuit instructions, often referred to as "pattern" instructions, reflect the work of judges and lawyers with significant experience in criminal trials, id. at v, ix; but of course, "pattern" instructions don't fit every case, see United States v. Hill, 252 F.3d 919, 922 (7th Cir.2001).)

DiSantis argues that, by authorizing the jury to consider his prior inconsistent statements for their truth, the district court unduly emphasized his inconsistent statements over those of other witnesses. He observes that the court cautioned that the jury could not consider other witnesses' prior inconsistent statements for their truth unless the witnesses made the statements "under oath." According to DiSantis, highlighting his prior, unsworn, inconsistent statements as substantive evidence, while limiting non-party witnesses' prior inconsistent statements to impeachment-only evidence, drew a prejudicial distinction between him and other witnesses.

DiSantis is correct that the district court's instructions set different standards for the substantive use of his and other witnesses' prior inconsistent statements. DiSantis is incorrect to suggest that this party-based distinction is in any way legally erroneous. The Rules of Evidence plainly distinguish between the prior inconsistent statements of non-party witnesses and of party-opponents like DiSantis. The former are admissible as non-hearsay, substantive evidence only if "subject to cross-examination" and "given under oath." Fed.R.Evid. 801(d)(1)(A); United States v. Dietrich, 854 F.2d 1056, 1061 (7th Cir.1988) ("If a prior inconsistent statement meets the [oath and cross-examination] requirements of Rule 801(d)(1)(A) it may be admitted as substantive evidence .... A prior inconsistent statement that does not meet one of the criteria of Rule 801(d)(1)(A), however, may be used only for the purpose of impeaching the witness."). The latter are admissible as substantive evidence even if not given under oath. Fed.R.Evid. 801(d)(2)(A); United States v. Spiller, 261 F.3d 683, 690 (7th Cir.2001) ("A party's own statements offered against him are considered admissions...