U.S. v. Bartlett

• Decision Date: 08 June 2009
• Docket Number: No. 08-1197.,No. 08-1198.,No. 08-1196.,08-1196.,08-1197.,08-1198.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jon BARTLETT, Andrew R. Spengler, and Daniel Masarik, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

567 F.3d 901

UNITED STATES of America, Plaintiff-Appellee, v. Jon BARTLETT, Andrew R. Spengler, and Daniel Masarik, Defendants-Appellants.

No. 08-1196.

No. 08-1197.

No. 08-1198.

United States Court of Appeals, Seventh Circuit.

Argued May 15, 2009.

Decided June 8, 2009.

Dirk C. Phillips (argued), Department of Justice, Washington, DC, for Plaintiff-Appellee.

David W. Simon (argued), Foley & Lardner, Milwaukee, WI, for Jon Bartlett.

Brian Kinstler (argued), Kohler & Hart, Milwaukee, WI, for Andrew Spengler.

Alan G. Habermehl (argued), Kelly & Haqbermehl, Madison, WI, for Daniel Masarik.

Before EASTERBROOK, Chief Judge, and BAUER and ROVNER, Circuit Judges.

EASTERBROOK, Chief Judge.

The distance between civilization and barbarity, and the time needed to pass from one state to the other, is depressingly short. Police officers in Milwaukee proved this the morning of October 24, 2004.

Andrew Spengler held a housewarming party that started on October 23 and lasted into the next morning. Spengler and many guests were police officers. Liquor flowed freely. Katie Brown and Kirsten Antonissen were among the invitees. They arrived after 2:30 AM on October 24 with Frank Jude and Lovell Harris. The quartet was immediately made to feel unwelcome because the women are white, and the men are not. (Harris describes himself as black; Jude describes himself as bi-racial.) After five minutes, the four prepared to leave—but they were prevented when at least ten men stormed outside, surrounded Antonissen's truck, and demanded to know what the four new arrivals had done with Spengler's badge. Spengler says that he could not find it after the quartet arrived, and he accused them of theft. The men demanded that the four get out of the truck and surrender the badge. When they stayed inside, the men threatened them ("Nigger, we can kill you") and began to vandalize the truck. Harris tried to wake the neighbors; the men responded: "Nigger, shut up, it's our world."

Eventually all four were dragged from the truck. A search did not turn up the badge. Instead of concluding that Spengler's accusation was mistaken, the men became enraged and violent. One cut Harris's face in a way that he described as "slow and demented." Harris managed to free himself and run away. Multiple men began to kick and punch Jude. Antonissen managed to call 911; she told the operator "they're beating the shit out of him." When the men saw Antonissen use the phone, they wrested it from her hand and flung her against the truck so forcefully that its metal was dented. Brown made two calls to 911 before her phone, too, was seized.

The first call was logged at 2:48, and two officers (Joseph Schabel and Nicole Martinez) arrived at 3:00. The beating continued until their appearance. Men punched Jude's face and torso; when he fell to the ground, they kicked his head and thighs. The partygoers behaved as a mob. Not a single person in the house tried to stop the attack or even to call for aid. Jon Clausing, who had slashed Harris's face, explained his conduct as "just kind of going along with everybody." That is the way of the mob. Society has police forces to pose a counterweight to mobs, yet here the police became a mob.

Schabel and Martinez were on duty and had not been drinking, so they should have put a stop to the violence. Instead Schabel joined it, while Martinez watched. On being told that Jude had stolen Spengler's badge, Schabel called Jude a "motherfucker" and stomped on his face until others could hear bones breaking. After telling Martinez "I'm really sorry you have to see this," Daniel Masarik picked Jude off the ground and kicked him in the crotch so hard that his body left the ground. Jon Bartlett then took one of Schabel's pens and pressed it into each of Jude's ear canals, causing severe injury and excruciating pain. The men also broke two of Jude's fingers by bending them back until they snapped. Spengler put a gun to Jude's head and said: "I'm the fucking police. I can do whatever I want to do. I could kill you." Bartlett used a knife to cut off Jude's jacket and pants, leaving him naked on the street in a pool of his own blood.

The violence tapered off when additional on-duty police arrived. At 3:09 officers arrested Jude. Yes, they arrested the victim, although Jude had never fought back. (He had suffered a concussion and was unable to defend himself.) Jude was taken to an emergency room; the admitting physician took photographs because "[t]here were too many [injuries] to document" in writing. The injuries to Jude's ears could not be diagnosed because the physicians could not control the bleeding. One physician testified that she had never seen ear injuries so severe. While Jude was receiving treatment, on-duty officers recovered Jude's car. Bartlett and other men had ripped up its seats with knives and poured antifreeze over them; apparently they poured antifreeze into the gas tank too, damaging the engine. The radio had been wrecked. The men broke a headlight and tore a mirror off Antonissen's truck. Spengler's badge was not found in either the car or the truck; perhaps he had put down the badge in the house and was too soused to remember where.

Bartlett, Spengler, and Masarik were prosecuted in state court and acquitted after Schabel and others committed perjury on their behalf, while many people who had been at the party claimed to suffer memory loss. That made it impossible to show who had done what, and the judicial system (unlike a mob) demands personal responsibility. The Civil Rights Division of the Justice Department then investigated, and federal prosecutors persuaded several witnesses to cooperate. Four men (Joseph Schabel, Ryan Lemke, Jon Clausing, and Joseph Stromei) pleaded guilty to obstruction of justice (by perjury, including false testimony before the federal grand jury), to violating Harris's and Jude's civil rights, or both. Bartlett, Spengler, and Masarik were convicted by a jury of conspiring to violate Harris's and Jude's right to be free from unreasonable searches and seizures (18 U.S.C. § 241), and of the substantive offense (18 U.S.C. § 242). (Excessive force in making an arrest violates the fourth amendment to the Constitution, applied to state police officers by the fourteenth amendment. See Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).) Bartlett was sentenced to 208 months' imprisonment, Spengler and Masarik to 188 months apiece. All seven men have been fired by the Milwaukee Police. Two more officers were fired but later reinstated; an additional four were disciplined.

Bartlett, Spengler, and Masarik present twelve appellate issues. Only four require discussion. The rest have been considered, and we reject them without comment.

1. The maximum punishment for a violation of either § 241 or § 242 is 120 months' imprisonment. The longer sentences that Bartlett, Spengler, and Masarik received depend on convictions of both offenses. All three contend that the evidence of conspiracy is insufficient. Conspiracy is agreement to violate some other law, see United States v. Shabani, 513 U.S. 10, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994), and defendants maintain that events developed without an agreement. When Spengler called for aid to recover his badge, people rushed from the party to Antonissen's truck without prior negotiation or agreement.

This perspective assumes that the agreement must predate the first substantive offense. Yet it need not. An agreement forged in the course of committing a crime, among people who plan to work together in an ongoing criminal venture, is no less a conspiracy than one that precedes the first overt act. The battery of Jude lasted for 20 minutes. A reasonable jury could infer that defendants and others formed a plan to do whatever was necessary to recover Spengler's badge and punish the thief—a plan carried out through cooperative criminal activity. Working together to commit a series of criminal acts, in which each cooperative act implies a plan to cooperate in the future, is a functional understanding of conspiracy. See United States v. Lechuga, 994 F.2d 346 (7th Cir.1993) (en banc); United States v. Wantuch, 525 F.3d 505, 519 (7th Cir. 2008). None of the evidence suggests that defendants worked at cross-purposes with each other, or with the rest of the mob. The evidence is enough to permit an inference of agreement and thus a conviction for conspiracy.

2. Masarik contends that he did not participate in the beating. He concedes that he was at the party but says that he stayed indoors or on the mob's periphery. He did not report the crime or assist the prosecution, so he might have been convicted of misprison of felony, see 18 U.S.C. § 4, but if he was a bystander he did not violate § 241 or § 242.

Six witnesses testified that Masarik held Jude while others punched and kicked him. Some of these witnesses testified that Masarik kicked Jude in the face at least twice, and that Masarik kicked Jude in the crotch (after apologizing to Martinez). Masarik contends that he must have been confused with someone else, and he proposed to present expert testimony about high error rates in eyewitness identifications. The district court excluded the proposed testimony for two principal reasons. First, the judge stated that jurors could determine the reliability of identifications using the evidence from direct and cross examinations. Second, the judge invoked Fed. R.Evid. 403, which allows the exclusion of evidence that is needlessly cumulative or will consume trial time out of proportion to its value.

The first of these reasons is weak. Doubtless lawyers will ask questions designed to assist the jurors in evaluating whether a witness is telling the truth. But the problem with eyewitness testimony is that witnesses who think they are identifying the wrongdoer—who are credible because they believe every word they utter on the stand—may be mistaken. Study after...