USA v. Cozzi

• Citation: 613 F.3d 725
• Decision Date: 30 July 2010
• Docket Number: No. 09-2648.,09-2648.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William COZZI, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

613 F.3d 725

UNITED STATES of America, Plaintiff-Appellee,

v.William COZZI, Defendant-Appellant.

No. 09-2648.

United States Court of Appeals,Seventh Circuit.

Argued Feb. 18, 2010.

Decided July 30, 2010.

Stuart D. Fullerton (argued), Scott Drury, Attorneys, Office of the United States Attorney, Chicago, IL, Elizabeth L. Biffl, Attorney, Department of Justice, Civil Division, Appellate Section, Washington, DC, for Plaintiff-Appellee.

Marc W. Martin (argued), Attorney, Marc Martin, Ltd., Chicago, IL, for Defendant-Appellant.

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

KANNE, Circuit Judge.

Chicago Police Officer William Cozzi shackled a man to a wheelchair in a hospital and then repeatedly bludgeoned him in the head and face with a sap. ¹ He now appeals the district court's denial of his motion to dismiss the indictment charging him with violating his victim's civil rights. He also appeals the district court's use of the sentencing guideline for aggravated assault rather than the guideline for civil rights violations. Neither of the issues Cozzi raises on appeal has merit. We therefore affirm Cozzi's conviction and sentence.

I. Background

Randle Miles was stabbed during an altercation in August 2005. He then drank heavily before an ambulance came and took him to Norwegian American Hospital in Chicago. William Cozzi, a Chicago Police Department officer, was dispatched to the scene of the altercation, but eventually made his way to the hospital to talk with Miles. Miles was apparently being loud and abusive to hospital staff, so Cozzi placed Miles under arrest, handcuffing him to a wheelchair and shackling his legs. While several witnesses looked on, Cozzi then hit Miles repeatedly with a non-police-issued sap. Cozzi later falsified a police report and misdemeanor complaints claiming that Miles had thrown punches and that Cozzi had struck Miles with his hand; he never mentioned the sap. The incident, however, was caught on tape by a hospital security camera. The hospital contacted the Chicago Police Department's Office of Professional Standards (“OPS”) later that month to report the incident.

OPS started an investigation the day after the hospital reported the incident. It interviewed several witnesses and obtained a copy of the video and 911 calls related to the event. On September 14, 20, and 21, 2005, OPS interviewed Cozzi. He was first given administrative rights, which compelled him to make a statement or lose his job, but which also guaranteed that his statements could not be used against him in any future criminal proceedings. Ultimately, OPS concluded that Cozzi should be terminated from the Chicago Police Department.

In December 2005, Cozzi was indicted in Cook County for aggravated felony battery and official misconduct. He pled guilty in May 2007 to a reduced misdemeanor battery charge, for which the court sentenced him to eighteen months' probation and required him to attend anger management classes. The superintendent of the Chicago Police Department filed charges in April 2006 to fire Cozzi from the police department. The Chicago Police Board held public hearings in July and August 2007 in which Cozzi was called as an adverse witness. In October 2007, the Police Board decided 6-2 to suspend Cozzi for two years rather than terminate him. His suspension was made retroactive to April 2006. The Cook County Circuit Court Chancery Division affirmed the decision in July 2008 over the city's appeal.

Former FBI agent Jody Weis was scheduled to become the Chicago Police Department's superintendent on February 1, 2008. In January 2008, Weis told the press that he was unhappy with the Police Board's decision and promised to review Cozzi's case. That same month, Weis sent two emails to an agent in the FBI's Chicago field office, asking whether the FBI had investigated Cozzi for civil rights violations and mentioning that the former superintendent had unsuccessfully tried to fire Cozzi and that Cozzi had “falsified his statement.” Weis also attached a copy of the video clip of the incident. The FBI had not yet started an investigation, but it quickly did. In April 2008, a federal grand jury indicted Cozzi on one count of violating 18 U.S.C. § 242 by depriving Miles of his right to be free from the unreasonable use of force. None of the federal prosecutors saw or reviewed Cozzi's immunized statements, and his protected statements were removed from the OPS files that were turned over to the federal grand jury.

Cozzi filed a motion in the district court seeking to have the indictment dismissed on the grounds that the government had improperly used his immunized statements in violation of Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). The district court denied his motion, finding that no one on the prosecution team reviewed the statements and that Weis could not have had more than a “tangential influence” on the prosecution team's trial strategy. Cozzi entered a conditional guilty plea, reserving his argument under Garrity to appeal. He also objected to several issues regarding the applicable sentencing guidelines and calculations. The district court sentenced Cozzi to forty months' imprisonment in June 2009. This appeal followed.

II. Analysis

Cozzi argues on appeal that the district court should have dismissed the indictment because Weis's review of his protected statements and subsequent tip to the FBI constituted an improper use of his statements in violation of Garrity, 385 U.S. 493, 87 S.Ct. 616, and Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). He also argues that the district court erred by calculating his base offense level under the guideline for aggravated assault rather than the guideline for civil rights violations.

A. Use of Immunized Statements

We review the district court's legal conclusions de novo and its factual findings for clear error. See United States v. Greve, 490 F.3d 566, 570 (7th Cir.2007). The Fifth Amendment, applicable to the states via the Fourteenth Amendment, provides that a person cannot be compelled to testify if in so doing he would incriminate himself. U.S. Const. amend. V. In some circumstances, however, the government may compel someone to testify, even if the testimony is incriminating, if the government gives the witness immunity. See, e.g., 18 U.S.C. § 6002. This exception to the general rule against compelled self-incrimination stems in part from the Supreme Court's decision in Garrity, 385 U.S. 493, 87 S.Ct. 616. There, several police officers were interviewed as part of an investigation into fixing traffic tickets. The officers were faced with a daunting choice: they were free to invoke their right not to incriminate themselves, but any officer that refused to testify would lose his job. The state then used some of the officers' testimony, over the officers' objections, in a later criminal trial. Id. at 494-95, 87 S.Ct. 616. The issue made its way to the Supreme Court, which held that “the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office....” Id. at 500, 87 S.Ct. 616.

Later, in Kastigar, 406 U.S. 441, 92 S.Ct. 1653, the Supreme Court upheld the constitutionality of a federal immunity statute, explaining that to supplant the Fifth Amendment's privilege, the government is only required to provide “use and derivative-use immunity”-that is, that the government cannot introduce the compelled testimony into evidence at a later trial, or make derivative use of the testimony. Id. at 453, 92 S.Ct. 1653. The Court noted that use and derivative-use immunity “prohibits the prosecutorial authorities from using the compelled testimony in any respect....” Id. It specified that “[t]his total prohibition on use provides a comprehensive safeguard, barring the use of compelled testimony as an ‘investigatory lead,’ and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosures.” Id. at 460, 92 S.Ct. 1653 (footnote omitted). Once the defendant shows that he made a protected statement, federal prosecutors have “the affirmative duty to prove that the evidence [they] propose[ ] to use is derived from a legitimate source wholly independent of the compelled testimony.” Id.

Some courts have read Kastigar expansively to prohibit not only the introduction of compelled testimony into evidence, but also “assistance in focusing the investigation, deciding to initiate prosecution, refusing to plea-bargain, interpreting evidence, planning cross-examination, and otherwise generally planning trial strategy.” See, e.g., United States v. McDaniel, 482 F.2d 305, 311 (8th Cir.1973). We, however, rejected this broad reading of Kastigar, opting instead for a more measured approach. See United States v. Velasco, 953 F.2d 1467, 1474 (7th Cir.1992).

We held in Velasco that “the mere tangential influence that privileged information may have on the prosecutor's thought process in preparing for trial is not an impermissible ‘use’ of that information.” Id. This approach acknowledges that “[t]he burden on the prosecution to establish an independent source for evidence against a defendant is a heavy one indeed,” but that it should not be an impossible one to bear. Id. We re-affirmed Velasco's “tangential influence” approach in United States v. Bolton, 977 F.2d 1196, 1199 (7th Cir.1992). Ours is not the only circuit to adopt this approach to Kastigar immunity. See, e.g., United States v. Schmidgall, 25 F.3d 1523, 1529 (11th Cir.1994) (“[T]his Circuit has adopted the ‘evidentiary’ interpretation of Kastigar: that the focus of a challenge on self-incrimination grounds should be on the direct and indirect evidentiary uses of immunized testimony, rather [than] on non-evidentiary matters such as the exercise...