Sharif v. Picone

• Decision Date: 21 January 2014
• Docket Number: No. 12–4468.,12–4468.
• Citation: 740 F.3d 263
• Parties: Iman SHARIF, Appellant v. C.O. Nathan PICONE; C.O. Brian Potance; C.O. Thomas Pinto; Lieutenant Joseph Kospiah; John Doe C.O. Nos 1–10.
• Court: U.S. Court of Appeals — Third Circuit

740 F.3d 263

Iman SHARIF, Appellant

v.C.O. Nathan PICONE; C.O. Brian Potance; C.O. Thomas Pinto; Lieutenant Joseph Kospiah; John Doe C.O. Nos 1–10.

No. 12–4468.

United States Court of Appeals,Third Circuit.

Argued Oct. 18, 2013.

Opinion Filed: Jan. 21, 2014.

Stephen D. Brown, Esquire, Donald C. Le Gower, Esquire (Argued), Dechert, LLP, Philadelphia, PA, for Appellant.

David J. MacMain, Esquire (Argued), Brian H. Leinhauser, Esquire, The MacMain

Law Group, Malvern, PA, for Appellees.

Before RENDELL, JORDAN and LIPEZ,^* Circuit Judges.

OPINION

RENDELL, Circuit Judge:

Plaintiff, Iman Sharif, appeals from a jury verdict in favor of Defendants—several Northampton County Prison officers—on Sharif's 42 U.S.C. § 1983 excessive force claim. On appeal, Sharif argues that the District Court erred in admitting evidence of Sharif's prior plea of nolo contendere and resulting conviction for assault in connection with the incident that is at the heart of his § 1983 claim. He notes that Federal Rule of Evidence 410 prohibits the admission of his nolo plea. He also urges that the Court abused its discretion under Federal Rule of Evidence 609 in admitting evidence of the conviction as relevant to his credibility.

I.

A. Factual Background

On March 11, 2009, Iman Sharif was an inmate at the Northampton County Prison. He was housed in the Restrictive Housing Unit (“RHU”) where Defendant–Appellees Corrections Officers Nathan Picone (“C.O. Picone”), Thomas Pinto (“C.O. Pinto”), and Brian Potance (“CO. Potance”) were all on duty. While CO. Picone was collecting dinner trays, he claims that Sharif “sucker punched” him. (J.A. 369.) In contrast, Sharif claims that CO. Picone initiated the altercation by punching Sharif first.

CO. Picone testified that once he was struck, he attempted to protect himself from additional punches and kicks. He further testified that C.O. Potance, who was assigned to help C.O. Picone retrieve dinner trays, entered Sharif's cell and attempted to restrain Sharif. At this point, C.O. Picone hit Sharif in the head with an open hand in an effort to “get him to the ground.” (J.A. 371.) Conversely, Sharif asserted that once CO. Picone began to hit him, CO. Potance and CO. Pinto entered his cell and joined in the attack by choking him.

Following the altercation, Sharif was handcuffed and moved to a “suicide cell.” (J.A. 446.) According to Appellees, this was for his own safety; however, he continued to cause commotion so he was moved to a restraint chair. Sharif contends that while he was in the restraint chair, he was punched repeatedly by unnamed corrections officers, all of which was observed and permitted by Appellee–Defendant Lieutenant Joseph Kospiah (“Lt. Kospiah”).

Sharif was charged with aggravated assault pursuant to 18 Pa. Cons.Stat. § 2702(a)(3) (2012) as a result of the altercation with C.O. Picone, C.O. Potance and C.O. Pinto. Sharif entered a plea of nolo contendere and was convicted under the statute as charged.¹ Sharif's excessive force claim under 42 U.S.C. § 1983 is based on this incident.

B. Procedural History

Sharif brought this § 1983 action alleging that C.O. Picone, C.O. Potance and C.O. Pinto are liable for attacking him in his cell in violation of his Eighth Amendment right to be free from cruel and unusual punishment. Further, he contends that Lt. Kospiah is liable for allowing the physical abuse to proceed while Sharif was restrained. Sharif' sought relief of “nominal, compensatory, and punitive damages” for Appellees' actions against him. (J.A. 20.)

Pre-trial, Sharif filed a motion in limine to exclude evidence of his nolo contendere plea under Rule 410. The Court noted that Sharif planned to take the stand and deny any wrongdoing in connection with the altercation. The Court stated that if that were to happen, then evidence of his plea “may end up being relevant” and would thus be admitted. (J.A. 123–24.) During a hearing on the motion, the Court accepted Appellees' counsel's argument that “it would be inconsistent to allow [Sharif] to have taken the position in a prior court proceeding that he wasn't going to contest the charges.” (J.A. 123.) In other words, the plea would be admitted as inconsistent with his assertion at trial that he had done nothing wrong and, therefore, as relevant to the issue of his credibility.

Pursuant to the Court's ruling, during cross-examination of Sharif, Appellees' counsel twice referred to Sharif's plea of nolo contendere to suggest that the plea was inconsistent with his statement at trial that he had done nothing wrong. We quote directly from the trial transcript:

Q: You stand before this jury and you have testified that you did absolutely nothing wrong, correct?

A: Yes, sir.

Q: The officers just came in and struck you for no reason?

A: Yes, sir.

Q: Yet, in another court at another time you had an opportunity to say the same thing, correct?

A: No, sir.

Q: You were criminally charged with assaulting Officer Picone, correct?

A: Yes, sir.

Q: And you didn't contest those charges?

A: No, sir.

Q: You pled no contest?

A: Yes, sir.

(J.A. 216–17.)

Q: Sure. Now, I want to get back to the first incident. It's your testimony as to the first part, the incident with Picone, that he came in, struck you, you had absolutely done nothing wrong, correct?

A: Wrong morally, like I did, I tried to get under his skin, I did talk about him.

Q: Right, but you did nothing physical?

A: Exactly.

Q: You did not strike him first?

A: Exactly.

Q: Okay. But, that's what you were charged with, correct, striking him first, that's what you were criminally charged with?

A: That's what—[Objection]

...

Q: Sure. You were charged with striking Officer Picone, correct?

A: I was charged with assaulting him, yes.

Q: Assaulting him. Okay. But, your testimony here today is you did not assault him in any way, shape, or form?

A: And that's [Objection regarding the definition of assault under this statute, i.e., assault of an employee of the state]

...

A: You asked me if I assaulted him?

Q: Correct.

A: The same thing that I said before, I did not hit Officer Picone.

Q: But, you did not contest in the criminal case that you assaulted him, correct?

(J.A. 241–44.)

In his closing, counsel again referenced Sharif's nolo plea, stating:

He says he didn't do a darn thing that day ... yet when he had an opportunity in another court proceeding to contest that he didn't do what he was accused of doing, he didn't contest it ... yet he comes in here in another court proceeding and takes a different position. That should speak volumes about his credibility.

(J.A. at 577.)

During trial, the District Court allowed Appellees to introduce evidence of Sharif's five prior convictions, including the conviction for assault resulting from his nolo plea, pursuant to the Court's denial of Sharif's motion in limine in which Sharif urged that the minimal probative value of these convictions was outweighed by their prejudicial effect. The other convictions were for simple assault and for false reporting to a police officer. The convictions were all admitted for the purpose of assessing Sharif's character for truthfulness.

The Court instructed the jury as to the purpose for which past convictions were admitted into evidence: “You may wish to consider those convictions as you weigh his credibility as a witness.” (J.A. 605.) The Court explained that one of the convictions was the result of a nolo contendere plea which, according to the Court, could be used only to evaluate Sharif's credibility. (J.A. 605–06; 222–23 (“[T]hose incidents of prior convictions are admitted for the sole purpose for you[, the jury,] to use if you so desire to consider the credibility of the witness.”)). The jury returned a verdict against Sharif, and this timely appeal followed.

II. Jurisdiction and Standard of Review

The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction over Sharif's appeal pursuant to 28 U.S.C. § 1291.

A district court's interpretation of the Federal Rules of Evidence is reviewed de novo. United States v. Furst, 886 F.2d 558, 571 (3d Cir.1989). The application of a particular rule by a district court is reviewed under an abuse of discretion standard. United States v. Balter, 91 F.3d 427, 437 (3d Cir.1996).

III.

A. Rule 410: Admissibility of the Nolo Contendere Plea

Sharif urges that the District Court erred in allowing evidence of his plea of nolo contendere to be admitted because Rule 410 bars such admission. Rule 410 states, in relevant part, “[i]n a civil or criminal case, evidence of [a nolo contendere plea] is not admissible against the defendant who made the plea.” Fed.R.Evid. 410(a)(2); see alsoFed.R.Crim.P. 11(f) (“The admissibility or inadmissibility of a plea ... is governed by Federal Rule of Evidence 410.”); Fed.R.Evid. 803(22) (plea of nolo contendere excluded from exceptions to hearsay rule). This prohibition is based on the fact that “a nolo plea is not a factual admission that the pleader committed a crime. Rather, it is a statement of unwillingness to contest the government's charges and an acceptance of the punishment that would be meted out to a guilty person.” Olsen v. Correiro, 189 F.3d 52, 59 (1st Cir.1999); see also North Carolina v. Alford, 400 U.S. 25, 35 n. 8, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (“Throughout its history ... the plea of nolo contendere has been viewed not as an express admission of guilt but as a consent by the defendant that he may be punished as if he were guilty and a prayer for leniency.”). An important policy consideration animating Rule 410 is that it encourages compromise in criminal cases, which, in turn, lessens the burden on courts, defendants and prosecutors, producing a more efficient criminal justice system. See Olsen, at 60 (“A second reason behind Rule 410's exclusion of nolo pleas is a desire to encourage compromise resolution of criminal cases.”); see also21 Am.Jur.2d Criminal Law § 675 (2013) (“A plea of nolo contendere...