U.S. v. Bigham, 86-2174

• Decision Date: 09 March 1987
• Docket Number: No. 86-2174,86-2174
• Citation: 812 F.2d 943
• Parties: 22 Fed. R. Evid. Serv. 1002 UNITED STATES of America, Plaintiff-Appellee, v. Morris Ray BIGHAM and Leonel Leal, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 943

812 F.2d 943

22 Fed. R. Evid. Serv. 1002

UNITED STATES of America, Plaintiff-Appellee, v. Morris Ray BIGHAM and Leonel Leal, Jr., Defendants-Appellants.

No. 86-2174.

United States Court of Appeals Fifth Circuit.

March 9, 1987.

Rehearing and Rehearing En Banc Denied April 6, 1987.

George H. Tyson, Jr., Michael Ramsey, Houston, Tex., for Bigham.

Harry H. Walsh, III, Huntsville, Tex., for Leal.

Dennis J. Dimsey, Atty., Appellate Section, Civil Rights Div., Bethesda, Md., Henry K. Oncken, U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., Wm. Bradford Reynolds, Jessica Dunsay Silver, Attys., U.S. Dept. of Justice, Washington, D.C., for the U.S.

Appeals from the United States District Court for the Southern District of Texas.

Before REAVLEY and RANDALL, Circuit Judges, and MAHON ^*, District Judge.

REAVLEY, Circuit Judge:

Appellants Bigham and Leal, former Texas Department of Corrections officers, appeal their convictions under 18 U.S.C. Secs. 241, 242 for violating the civil rights of two inmates. Their appeal raises questions of the admissibility of a prior out-of-court statement, the sufficiency of the evidence, and the adequacy of the trial court's instructions on when the use of force by prison guards rises to the level of a deprivation of constitutional rights. We affirm.

I

The appellants' convictions grew out of their conduct in connection with the escape and subsequent apprehension of two inmates from the Wynne Unit of the Texas Department of Corrections. On the evening of October 28, 1982, the two inmates escaped by disguising themselves as prison guards. Within a few hours, they were apprehended by local sheriffs and returned to the prison's back gate. They were met there by a large group of prison officials, some of whom stripped the inmates of their clothing to search for contraband. The government presented evidence that the inmates were pushed and struck while at the back gate.

The inmates were then escorted up a hill to the prison building. Again, there was evidence that some of the prison officials kicked and struck the inmates as they made their way. Once inside the building, the inmates were taken to an office for questioning about the circumstances of their escape. Over the course of the following approximately thirty minutes, the inmates, still naked, were shuffled individually in and out of the office. During questioning in the office, the inmates were struck repeatedly by some of the several officers crowded into the room. There was no evidence that the inmates resisted the officers or otherwise provoked the beatings. The door was shut and the blinds drawn on the office window while the beatings occurred.

The government's evidence also showed that appellant Leal abused the inmates as they stood in the hallway outside the office. Leal struck one inmate in the head, forcing his head against a wall and causing a cut over his eye. Leal burned the same inmate with his cigarette and then required the second inmate to extinguish the cigarette with his bare foot. As Leal later escorted one of the inmates to the prison infirmary, he again struck the inmate and had to be restrained by a fellow prison official. Again, the thrust of the evidence was that the inmates did nothing to justify the use of any force by Leal at all, although there was some suggestion that one of the inmates did not move promptly down the hall when asked to do so.

There was testimony that at least some of the beatings in the office occurred on cue--a nod of the head--from the ranking prison official in the office. There was also evidence that following the beatings the officers agreed together to submit false reports on the incident to cover up their misconduct and explain the inmates' injuries.

Medical evidence presented by the government showed that one of the inmates suffered as a result of the beatings a one and one-half inch laceration over his eye, several burns, swollen testicles, and bruises and abrasions on the upper part of his body. The other inmate suffered bruises and abrasions on the upper part of his body and a blister on his foot. The same inmate also complained the next day of blood in his stool.

On July 15, 1985, a federal grand jury indicted six of the prison officials--including appellants--for violating the inmates' civil rights. The case went to trial in January of 1986. The jury convicted most of the defendants of both conspiring to violate the inmates' rights, 18 U.S.C. Sec. 241, and actually violating those rights, 18 U.S.C. Sec. 242. Appellant Bigham was convicted on the conspiracy count, but acquitted on the substantive counts. Only Bigham and Leal have appealed their convictions.

II

Bigham claims the district court improperly admitted a prior statement of a key government witness against him. The government urges that the statement is admissible either as an adopted--and thus non-hearsay--statement of the witness or as a prior inconsistent statement. We find the statement admissible as a prior inconsistent statement and do not reach the question of adoption.

The government's case consisted largely of testimony from unindicted prison officials who were present on the night of the beatings. Several of those witnesses turned out to be quite reluctant once on the stand to tell what they saw, despite having earlier implicated the defendants in their testimony to the grand jury. The government was thus often left to introduce the witnesses' grand jury testimony in an effort to prove its case. One such reluctant witness was Burnetton Byrd, who was present in the office during the beatings and who told the grand jury that he saw Bigham strike one of the inmates. Once on the stand, however, Byrd claimed he could not remember whether Bigham was in the office or whether he had struck an inmate. On further questioning, Byrd admitted that Bigham had been in the office and that he had told the grand jury that Bigham struck an inmate. But he still claimed he had no recollection whether Bigham in fact struck the inmate. ¹

Federal Rule of Evidence 801(d)(1)(A) excludes from the hearsay rule a statement that is inconsistent with the trial testimony of a witness who is subject to cross-examination concerning the statement. The rule requires that the prior statement, in addition to being inconsistent with the trial testimony, be made "under oath subject to the penalty of perjury at a trial, hearing, or other proceeding." The rule encompasses statements made before a grand jury. See, e.g., United States v. Whitaker, 619 F.2d 1142, 1149 (5th Cir.1980); H.R.Conf.Rep. No. 1597, 93d Cong., 2d Sess. 10, reprinted in 1974 U.S.Code Cong. & Admin.News 7051, 7098, 7104. Bigham argues that Byrd's statement to the grand jury that he saw Bigham strike an inmate is not admissible under this rule because it is not inconsistent with his testimony at trial that he could not remember whether Bigham had struck an inmate. We disagree.

Rule 801 does not give any explicit guidance for determining when two statements are inconsistent. Its background, however, is instructive. Although various commentators have argued that all prior statements of a witness should be excluded from the hearsay rule, the Federal Rules adopted the less radical position of admitting prior statements only when certain safeguards are present. One such safeguard is that the prior statement be inconsistent with the testimony given at trial. The drafters of the rule felt that this inconsistency requirement "assures a thorough exploration of both versions while the witness is on the stand and bars any general and indiscriminate use of previously prepared statements." Fed.R.Evid. 801 advisory committee note. The drafters also noted that the prior statement is more likely to be true as it was made closer in time to the event. Especially significant to this case is the drafters' belief that the rule would " 'provide a party with desirable protection against the "turncoat" witness who changes his story on the stand and deprives the party calling him of evidence essential to his case.' " Id. (quoting Cal.Evid.Code. Sec. 1235, comment).

The district court properly admitted evidence of Byrd's grand jury statement. Because Byrd did not deny he made the statement or claim he was not able to recollect the circumstances of his appearance before the grand jury, Bigham had a full opportunity to cross-examine Byrd concerning that testimony. Bigham was free to attempt to elicit from Byrd testimony that would show the jury that Byrd's earlier statement should not be credited. The jury thus was in a position to make an informed determination as to the truthfulness of the prior statement. Cf. DiCarlo v. United States, 6 F.2d 364, 368 (2d Cir.), cert. denied, 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed.2d 1168 (1925) ("If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court.").

The policy of the rule to protect against turncoat witnesses is fully implicated in this case. Byrd was obviously an evasive and reluctant witness, and the trial judge reasonably could have concluded that his loss of memory was feigned. Despite his ability to remember in detail some of the events of the night the inmates were beaten, Byrd claimed no memory of other details. The district court reasonably could have concluded that this selective memory loss was more convenient than actual. Similarly, the fact that Byrd's grand jury testimony and his trial testimony were separated by only seven months, while the underlying event occurred several years earlier, casts doubt on Byrd's claimed loss of memory. As Professor Wigmore observed, "the unwilling witness often takes refuge in a failure to remember." 3A J. Wigmore, Evidence Sec. 1043, at 1061 (Chadbourn rev.ed. 1970). The district court correctly admitted Byrd's prior...