United States v. Brown, 18-10772

Citation934 F.3d 1278
Decision Date14 August 2019
Docket Number No. 18-10972,No. 18-10772,18-10772
Parties UNITED STATES of America, Plaintiff-Appellee Cross Appellant, v. Michael C. BROWN, Defendant-Appellant Cross Appellee. United States of America, Plaintiff-Appellee Cross Appellant, v. Philip N. Antico, Defendant-Appellant Cross Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Christopher Chen-Hsin Wang, Thomas E. Chandler, U.S. Department of Justice, Civil Division, Appellate Staff, WASHINGTON, DC, Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, MIAMI, FL, Sivashree Sundaram, U.S. Attorney's Office, FORT LAUDERDALE, FL, for Plaintiff - Appellee-Cross Appellant.

Theresa Van Vliet, Genovese Joblove & Battista, PA, FORT LAUDERDALE, FL, for Defendant - Appellant-Cross Appellee.

Before WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

The main issue presented by these consolidated appeals is whether sufficient evidence supports the convictions of Michael Brown for deprivation of rights under color of law, 18 U.S.C. § 242, and of Philip Antico for obstruction of justice, id. § 1512(b)(3), for offenses involving an incident of police brutality and a later coverup. Brown was one of several police officers who assaulted the occupants of a vehicle that led the officers on a high-speed chase. After the incident, Brown and the other officers filed reports that omitted most of the details about how they punched and kicked the occupants. Antico supervised many of these officers, and after a video of the incident came to light, he had his subordinates substantially change their reports to better reflect what happened as recorded on the video. When agents of the Federal Bureau of Investigation interviewed Antico about the incident, he gave misleading answers that concealed that his subordinates’ reports had been changed. At separate jury trials, Brown was convicted of deprivation of rights under color of law for his role in the assault, and Antico was convicted of obstruction of justice. At sentencing for both defendants, the district court rejected the government’s argument that their Sentencing Guidelines ranges should be calculated using aggravated assault as the underlying offense. The district court sentenced Brown and Antico to downward-variance sentences of three years’ probation. Brown’s and Antico’s primary challenge is to the sufficiency of the evidence, and the government cross-appeals their sentences. Because there is sufficient evidence to support the convictions and no other reversible errors occurred related to either trial, we affirm the convictions. But because it is unclear whether the calculation of each defendant’s guideline range rested on a factual finding infected by legal error, we vacate Brown’s and Antico’s sentences and remand for resentencing.

I. BACKGROUND

We divide our background discussion in three parts. First, we describe the facts of the assault and the coverup. Second, we discuss the prosecution of Brown. Third, we discuss the prosecution of Antico.

A. The Facts.

In the early morning of August 20, 2014, Officer Justin Harris of the Boynton Beach Police Department tried to perform a traffic stop of a vehicle in which "B.H." was the driver and "J.B." and "A.H." were passengers. B.H. refused to stop as directed but did not otherwise attempt to evade the officer, so Harris continued following him. As B.H. approached an entrance to the highway, his vehicle struck an officer who was on foot. A high-speed chase involving several officers, including Officer Michael Brown, ensued. During the chase, the officers heard over the radio that B.H. had intentionally struck an officer with his car. After B.H. turned onto a residential street, Brown rammed the suspect vehicle and forced it to stop. A group of officers, including Brown, Harris, Ronald Ryan, and several others, approached the vehicle with their guns drawn.

Brown and several other officers then assaulted the vehicle’s occupants. Brown was one of the first to reach the vehicle, and he moved toward the front passenger door. Within seconds of reaching the door, he opened it and repeatedly punched and kicked the front-seat passenger, J.B. Officers Harris and Ryan arrived seconds later, and they also repeatedly struck J.B. While J.B. was still in the car with his seatbelt on, Brown attempted to use his Taser against him, twice pulling the trigger and ejecting the Taser’s probes. After dragging B.H. and A.H. from the vehicle, other officers repeatedly struck and kicked them. While the assault was occurring, a Palm Beach County Sheriff’s Office helicopter flying overhead recorded the incident.

Two of the vehicle’s occupants sustained injuries during the assault. B.H. suffered severe lacerations to his head and face and bruising that caused his eyes to swell shut. J.B. also suffered severe bruising and lacerations on the face.

Sergeant Antico, the direct supervisor of Brown, Harris, and Ryan, was not at the scene of the assault. During the chase, he monitored events on the radio, and he stopped to attend to the injured officer. But he saw B.H. at the hospital the night of the incident and was aware of his injuries. And he expected his officers to document the strikes they had used. Antico left for a scheduled vacation from August 20 to August 27, so he did not review the involved officers’ reports until he returned.

Hours after the incident but before they learned about the video from the police helicopter, the involved officers—including Brown, Harris, and Ryan—submitted officer reports about the incident. Boynton police officers are trained that an officer report is the primary document for reporting the details about an officer’s use of force. An officer report should include a narrative account that recounts the types of force an officer used and the circumstances that justified their use. For example, if an officer struck and kicked a suspect, he would be expected to include those details in his officer report.

Five of the involved officers failed to accurately record their use of force in their officer reports. Brown wrote in his report that he used a Taser against J.B. after J.B. ignored loud verbal commands to exit the vehicle, but he did not describe striking or kicking J.B. Ryan wrote in his report that after Brown used his Taser against J.B. for failing to exit the vehicle, J.B. complied and was handcuffed. Ryan failed to note that he had repeatedly punched J.B. Harris wrote in his report that when he arrived at the vehicle, Brown and Ryan were struggling with J.B., who refused to exit the vehicle or show the officers his hands. Harris stated that he then used his Taser against J.B., which allowed the officers to extract J.B. from the vehicle, but that he had to use his Taser a second time after J.B. continued to resist arrest. Harris did not mention that he had punched J.B. In addition, two other officers failed to fully record their use of punches and kicks against B.H.

The involved officers also filed use-of-force reports. A use-of-force report is an administrative record that the Boynton Beach Police Department uses to compile annual statistics on use-of-force incidents. It is a two-page form on which an officer checks boxes for the general types of force used. The form also instructs that the officer "must " include in his offense report "[a ]ll ... details of the arrest," the circumstances that "led [the officer] to believe force was necessary," and the "[t]ypes of force used and [its] effects." Unlike officer reports, which are the official records that the Boynton Police Department may share with the State Attorney’s Office or with the public, use-of-force reports are internal to the Boynton Police Department. Boynton officers are trained that checking a box on the use-of-force report is not a substitute for recording the type of force used in the officer report. Five of the involved officers, including Brown, Harris, and Ryan, filed use-of-force reports that checked a box for "[b]lows with hands/fists/feet and other body parts."

After Antico returned to work on August 27, he obtained the helicopter video and watched it with Brown. Antico then began reviewing the officer reports that were submitted and validated as complete. He rejected those reports that did not record strikes or kicks against J.B. and B.H. Antico returned Harris’s and Ryan’s officer reports, allowing them to change their reports to include that they struck J.B. Ryan’s amended report also included several new allegations: that J.B. appeared to be reaching for a weapon before Brown used his Taser; that J.B. refused to surrender his hands for cuffing after he was pulled from the vehicle; and that Ryan had then "delivered 3 to 4 knee strikes to [J.B.]’s right thigh." After viewing the video, Brown changed his report to include that he struck J.B. several times with a closed fist after J.B. refused to comply with loud verbal commands to place his hands on the dashboard, and Brown added that he used a Taser after J.B. still refused to comply. Brown continued to omit that he kicked J.B. Antico also returned reports for two other officers to allow them to add that they struck B.H. An analysis of the electronic metadata of the reports—referred to at trial as the "digital audit trail"—revealed that Antico rejected officer reports eleven times in the 29 hours after watching the helicopter video, including rejecting reports by Harris and Ryan several times each.

After the officers made these changes to their reports, Antico approved and transmitted them to Boynton’s chief of police, Jeffrey Katz. After Chief Katz reviewed all the evidence regarding the incident, he referred the matter to state and federal authorities to determine whether the officers violated any laws.

In February 2015, agents from the Federal Bureau of Investigation interviewed Antico. At that time, both Antico and the Bureau agents were unaware that the reporting system for...

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