U.S. v. Walker, 85-3544

• Decision Date: 27 March 1986
• Docket Number: No. 85-3544,85-3544
• Citation: 785 F.2d 1237
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John L. WALKER, and Joseph Hebert, Defendants-Appellants. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1237

785 F.2d 1237

UNITED STATES of America, Plaintiff-Appellee, v. John L. WALKER, and Joseph Hebert, Defendants-Appellants.

No. 85-3544

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

March 27, 1986.

David M. Hufft, Gretna, La., for Walker & Hebert.

John P. Volz, U.S. Atty., Daniel Linhardt, Joseph I. Giarusso, Jr., Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, RANDALL and DAVIS, Circuit Judges.

PER CURIAM:

Defendants appeal from their convictions under 18 U.S.C. Secs. 242, 1512 of depriving certain persons of their civil rights. We affirm the convictions.

I.

James Winkler was driving to his home at approximately eight o'clock on the evening of April 18, 1985. Officer James Walker of the Mississippi River Bridge Police Authority observed Winkler exit the Mississippi River Bridge in New Orleans in excess of the speed limit. As Winkler came down the exit ramp at Camp Street, Walker pulled him over. Both men got out of their cars, and, according to Winkler's testimony, Walker then ordered him to assume a spread eagle position with his hands on the trunk of his own car. Winkler claims, though Walker denies, that the officer then struck him in the back. In any event, the two exchanged words, and Walker taunted Winkler, challenging Winkler to hit him. Winkler complied, striking Walker in the face.

Up until this point, Winkler and Walker were the only two at the scene. Soon an attorney named Eric Person, who was called at trial as a witness by the defense, arrived and observed Walker atop Winkler hitting Winkler on or near the face. Next, a local television news reporter, along with a cameraman, arrived. The two happened to be driving in the vicinity when they saw the scuffle. The news team initially believed that the police officer was in trouble. That turned out not to be the case. The two stopped to observe, and the cameraman, Hubert Vigreaux, started to film the incident. The reporter, Lynn Gansar, continued to watch and used her two-way radio to call for help. Gansar saw Walker on Winkler's back, and she watched him beat Winkler as Vigreaux began filming the action.

Vigreaux's film begins as Walker is tightening the handcuffs on Winkler. At about the same time, Walker's immediate supervisor, the other defendant in this appeal, Sergeant Joseph Hebert, arrived. Vigreaux's tape shows the two police officers rather violently jerking Winkler off the ground by the handcuffs. Then a third officer, Lewis Taylor, arrived, and Winkler asked Taylor for help, explaining that Walker had beaten him. The video tape captures Taylor's response, which was to the effect that the beating was good for Winkler. It also shows Hebert delivering a quick punch to the back of Winkler's head. Taylor then approached Vigreaux and demanded the video tape. Taylor began to wrest the camera out of Vigreaux's hands and demanded that Vigreaux tell him how to eject the video tape. Vigreaux was eventually knocked to the ground, and while he was lying there, Taylor and a fourth officer, Montrel Surgent, kicked Vigreaux at least twice and demanded that he hand over the video tape.

A short while after the officers took the tape from Vigreaux's camera, another photographer arrived at the scene in response to Gansar's earlier call for help. The second cameraman began the film rolling once again. The second tape shows Vigreaux being led to a police van. Gansar asked Hebert what Vigreaux had done, and Hebert responded that he had interfered with a police officer. Gansar then explained several times that Vigreaux should be treated less violently, as he had problems stemming from a recent automobile accident. Hebert responded that Vigreaux should have thought of that before he got involved. The police took Vigreaux to the central lock-up of the New Orleans Police Department, but they immediately released him and charges were dismissed. At trial, all the witnesses agreed that Vigreaux had not interfered with the police.

A federal grand jury indicted all four officers for depriving persons of their civil rights in violation of 18 U.S.C. Secs. 241, 242. Officers Walker and Hebert, the appellants in this case, ¹ were convicted of willfully striking and assaulting Winkler. In addition, Hebert was convicted of willfully, unlawfully, and without probable cause arresting Vigreaux, thereby depriving him of his civil rights. Both Walker and Hebert received one-year prison sentences. They appeal, raising two issues. They argue first that there was not sufficient evidence to sustain their convictions. Second, they claim that the jury misapplied the court's definition of "assault" to the facts established at trial.

II.

The standard of review we apply in this case is well established.

It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence.

United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983) (footnote omitted). In applying this standard, we view the evidence in the light most favorable to the government. United States v. Merritt, 736 F.2d 223, 231 (5th Cir.1984).

The defendants do not dispute that both Winkler and Vigreaux had the right to be free from the use of excess force, and that...