708 Fed.Appx. 533 (11th Cir. 2017), 16-11588, United States v. Umbach

Docket Nº:16-11588
Citation:708 Fed.Appx. 533
Opinion Judge:PER CURIAM:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert Wade UMBACH, Christopher Kines, Defendants-Appellants.
Attorney:Christine A. Monta, Francesca Lina Procaccini, Thomas E. Chandler, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, Risa Anne Berkower, Christine M. Siscaretti, U.S. Attorney General’s Office, Washington, DC, Michael J. Moore, U.S. Attorney, Pope McGlamry Kilp...
Judge Panel:Before WILLIAM PRYOR, MARTIN, and ROSENBAUM, Circuit Judges.
Case Date:August 30, 2017
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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708 Fed.Appx. 533 (11th Cir. 2017)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert Wade UMBACH, Christopher Kines, Defendants-Appellants.

No. 16-11588

United States Court of Appeals, Eleventh Circuit

August 30, 2017

Editorial Note:

DO NOT PUBLISH. (See Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 11th Cir. Rule 36-2.)

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[Copyrighted Material Omitted]

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Appeals from the United States District Court for the Middle District of Georgia, D.C. Docket No. 1:14-cr-00029-WLS-3

Christine A. Monta, Francesca Lina Procaccini, Thomas E. Chandler, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, Risa Anne Berkower, Christine M. Siscaretti, U.S. Attorney General’s Office, Washington, DC, Michael J. Moore, U.S. Attorney, Pope McGlamry Kilpatrick Morrison & Norwood, PC, Atlanta, GA, for Plaintiff-Appellee

Jonathan Dodson, Christina Lee Hunt, Federal Public Defender’s Office, Macon, GA, for Defendant-Appellant Robert Wade Umbach

Kermit S. Dorough, Jr., Kermit S. Dorough, Jr., LLC, Albany, GA, for Defendant-Appellant Christopher Kines

Before WILLIAM PRYOR, MARTIN, and ROSENBAUM, Circuit Judges.

OPINION

PER CURIAM:

Defendants-Appellants Robert Wade Umbach and Christopher Kines are former officers of the Decatur County Sheriff’s Office ("DCSO" ) who appeal their convictions and sentences entered after a jury found them guilty of obstructing a civil-rights investigation conducted by the Federal Bureau of Investigation. For the reasons that follow, we affirm their convictions, vacate their sentences, and remand for resentencing.

I.

The events leading to Umbach’s and Kines’s convictions stemmed from an underlying incident involving law enforcement’s alleged use of excessive force against Ronnie Aaron Parrish, and Umbach’s and Kines’s efforts to cover up their and their fellow officer’s alleged use of excessive force during that incident. Among Umbach’s and Kines’s acts in furtherance of their cover-up, they prepared false reports of the incident, testified falsely at Parrish’s criminal trial, and gave false statements to the FBI when the FBI investigated. Umbach’s and Kines’s convictions are based on the false statements they gave to the FBI. But to evaluate the sufficiency of the evidence against Umbach and Kines at their federal trial in this case, we must recount evidence pertaining to all of these events.

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A.

BikeFest is an annual, week-long event held every September in Decatur County, Georgia, during which bands play music, funds are raised for charity, and attendees camp out, cook out, eat, drink, and dance. On Saturday, September 15, 2012, the last night of BikeFest for the year, a series of altercations occurred, triggering a chain of further events that ultimately led to the prosecution now before us for review.

A party was taking place at a campsite, and one couple at the party, Mandy and Mike Green, began arguing, so they went to talk behind a camper that was parked at the campsite. Concerned that the argument was escalating, another couple, Gena and Mark West, followed the Greens behind the camper and tried to calm them down.

The Wests then headed back to the party, but as they were walking back, Mark turned around to go and tell Mike one more thing. Gena tried to stop Mark by touching his chest and talking to him, but Mark persisted.

The Greens ended up disappearing into a recreational vehicle ("RV" ) at the campsite, but the Wests were still outside when DCSO Deputy Charlie Emanuel spotted them arguing. Emanuel approached, and while Gena told him that the Greens were in a fight inside of the RV, Mark continued to push his way towards the RV. Emanuel commanded Mark to step back from the RV and attempted to pull Mark away, but Mark refused to listen and pushed back against Emanuel, so Emanuel grabbed Mark, slung him to the ground, and began to handcuff him. By that point, Deputy Kines had come over, and he assisted Emanuel in apprehending Mark.

As this struggle unfolded, Ronnie Aaron Parrish, who is Gena’s son, was standing nearby. Parrish heard Gena start screaming his name when Emanuel became physical with Mark, and Parrish quickly headed towards the commotion. Before Parrish could get to Mark, however, Parrish was grabbed from behind, and he began struggling to break free.

Parrish did not realize at the time that the individuals who were grappling with Mark on the ground were law-enforcement officers, nor did Parrish know that the people who were restraining him from behind were officers as well. So Parrish kept pushing forward in an attempt to get closer to Mark; Parrish didn’t get far, however, because someone jumped on his back, and then two other men, who Parrish also could not tell were officers, blocked his path forward. The officers then pulled him to the ground and attempted to hold him there as he struggled.

As it turns out, among the various officers present, Deputies Umbach and Kines were on the ground restraining Parrish. They were soon joined by Wiley Griffin IV ("Griffin IV" ), who was a deputy of the sheriff’s office of neighboring Grady County and was also the son of Wiley Griffin III, the DCSO Sheriff (the "Sheriff" ).

While Umbach and Kines were still holding Parrish down, Griffin IV grabbed Parrish by the head, lifted his face up, and forcibly struck Parrish with a flashlight multiple times across the right side of his face, including on his eye. After one of the first strikes, one of the officers involved yelled at Parrish, "Stop trying to get my gun, boy." DCSO Captain Chip Nix, however, was standing nearby, and he testified that he did not observe Parrish trying to reach for any officer’s gun and that, given how Parrish was positioned, it did not even seem possible that Parrish could have attempted to grab a gun. Nix later suggested that one of the officers yelled the command out as pretext to make it seem to the

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crowd of onlookers that Griffin IV’s strikes were justified.

Parrish’s beaten face was covered in blood and had visible wounds. The officers handcuffed him and took him to the DCSO’s command center, a mobile police station that had been set up on the BikeFest campgrounds. Officers at the command center took photographs of Parrish’s injuries, got his name, ordered him to report to the DCSO the following Monday morning for an interview, and then let him leave. Parrish’s wife picked Parrish up and escorted him to a nearby hospital. Two days later, Parrish was treated by an ophthalmologist, who testified that, at the time of treatment, Parrish suffered, among other ailments, a laceration above his right eye, bruising around his right eye, bleeding within his right eye, lingering pain, and blurred vision.

B.

On the Monday following the BikeFest incident, DCSO Captain Elizabeth Croley asked Umbach and Kines each to write his own statement about what he witnessed during the altercation with Parrish.

Umbach’s statement tells the following narrative. Before he became involved with Parrish, Umbach was assisting Emanuel with Mark West’s arrest. Other deputies arrived, and Umbach asked Croley to hold back Gena West so that Umbach could better help Emanuel in restraining Mark.

Shortly thereafter, Umbach reported, Parrish ran up to Croley and punched her in the chest. Umbach grabbed Parrish from behind and pulled him away from Croley. Next, Kines went over and yelled at Parrish, "Don’t grab that gun." And then, together, Umbach and Kines took Parrish to the ground. After that, according to Umbach, "We struggled with Mr. Parrish for a few minutes and I was able to gain control of his left arm while Deputy Kines and other deputies had his right arm." Parrish was then handcuffed, and Umbach and Griffin IV escorted Parrish to Griffin IV’s golf cart, which took Parrish to the DCSO command center. Notably, although Umbach’s witness statement mentioned Griffin IV, it did not mention the injuries Parrish sustained, let alone the flashlight beating Griffin IV inflicted on Parrish’s face.

Kiness statement said that his initial purpose in going to the campsite was to help Emanuel with Mark West. Kines assisted Emanuel in handcuffing Mark, and as Kines escorted Mark to a cart, Kines heard Croley yell, "He just hit me." Kines then saw Croley and Umbach struggling with Parrish, and Kines went to help them. Kines wrote, The subject was taken to the ground and was on his knees in a kneeling position, and would not comply with demands to put his hands behind his back. Other deputies were assisting as well to subdue the combative subject. I saw the subject reach back and put his right hand on Deputy Umbauchs [sic] service weapon. The subject was...

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