U.S. v. Carson
| Decision Date | 30 March 2009 |
| Docket Number | No. 05-1812.,No. 05-2294.,No. 05-2143.,No. 05-2295.,No. 05-1889.,05-1812.,05-1889.,05-2143.,05-2294.,05-2295. |
| Citation | 560 F.3d 566 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Patrick CARSON (05-1812); Robert Hey (05-1889); Peter Jacquemain (05-2143), Defendants-Appellants. United States of America, Plaintiff-Appellant/Cross-Appellee, v. Robert Jacquemain, Defendant-Appellee/Cross-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Steven F. Fishman, Law Office, Detroit, Michigan, Michael C. Naughton, Law Offices, Detroit, Michigan, Spiros P. Cocoves, Law Office, Toledo, Ohio, Scott C. Holbrook, Baker & Hostetler, Cleveland, Ohio, for Defendant. Daniel R. Hurley, Assistant United States Attorney, Detroit, Michigan, for Plaintiff.
ON BRIEF:
Steven F. Fishman, Law Office, Detroit, Michigan, Spiros P. Cocoves, Law Office, Toledo, Ohio, Scott C. Holbrook, Daniel R. Warren, Baker & Hostetler, Cleveland, Ohio, James C. Thomas, Plunkett & Cooney, Detroit, Michigan, for Defendant. Daniel R. Hurley, Assistant United States Attorney, Detroit, Michigan, Angela M. Miller, Diane K. Flynn, United States Department of Justice, Washington, D.C., for Plaintiff.
Before: GUY, SUHRHEINRICH, and GIBBONS, Circuit Judges.
This case arises out of the assault of Robert Paxton by Mount Clemens Police Department officers and the officers' subsequent conspiracy to conceal this assault. Following a joint trial of five defendants, the jury convicted Patrick Carson of deprivation of rights under color of law, conspiracy to obstruct justice, and obstruction of justice. The jury found Robert Hey guilty of obstruction of justice and perjury. Peter Jacquemain was found guilty of obstruction of justice, and Robert Jacquemain was found guilty of conspiracy to obstruct justice. A fifth officer, Daniel Gerkey, was acquitted of all charges.
Carson, Hey, and the Jacquemains appeal their convictions on various grounds, and Carson appeals his sentence. Additionally, the government appeals the sentence of Robert Jacquemain. For the reasons set forth below, we affirm the convictions of Carson, Hey, and the Jacquemains. Additionally, we affirm Carson's sentence. We also conclude that any errors in calculating Robert Jacquemain's sentence were harmless and that his sentence was not substantively unreasonable. We therefore affirm Robert Jacquemain's sentence.
On the evening of July 27, 2002, Robert Hey, an off-duty Mount Clemens police officer, was driving in his vehicle with a friend, Brian Pike. Hey and Pike were on their way to the Mount Clemens police station when Hey noticed that a vehicle was tailgating his own. The driver of the tailgating vehicle, Robert Paxton, believed that Hey had cut him off as he was approaching a traffic light. This encounter lead to escalating road rage, with both parties tailgating, cutting each other off, and braking abruptly.
Hey then placed a call on his cell phone to the Mount Clemens police station and requested assistance, stating that someone was trying to run him off the road. At the time, Mount Clemens police officers Duane Poucher, Patrick Carson, Peter Jacquemain, Robert Jacquemain, and Daniel Gerkey were on duty at the station. The five officers ran to their patrol cars. Poucher and Gerkey left the station first, in one patrol car; Robert Jacquemain then departed with Carson, and Peter Jacquemain drove alone. Poucher and Gerkey reached Hey's vehicle and passed it in pursuit of Paxton's vehicle. Paxton eventually pulled over in a residential neighborhood, on the right side of the street, and Poucher, the driver of the patrol car, parked at an angle behind Paxton's vehicle. Carson and Robert Jacquemain arrived next, parking on the side and slightly in front of Poucher's patrol car. Peter Jacquemain stopped his car behind Poucher's, and Hey parked on the left side of the street.
According to the testimony of Poucher, upon exiting his patrol car, Robert Jacquemain ran to Paxton's vehicle, opened the driver's side door, pulled Paxton out of the vehicle, and threw Paxton on the ground, head first.1 Other officers also approached Paxton's vehicle. Poucher then exited his patrol car and observed the four other officers crouched around Paxton, holding him down. Then, in view of several neighborhood residents—Tracey Anderson, Heather Lane, and Joseph Burkhardt—the officers beat Paxton. Paxton did not resist the officers; instead, he shielded himself and pled with the officers to stop. Poucher testified that Carson struck Paxton at least twice, and Poucher himself admitted that he kicked Paxton two or three times in the groin area. The bystanders—Pike, Anderson, Lane, and Burkhardt—testified, with varying degrees of detail, that they saw the officers punching and kicking Paxton while he was on the ground. The bystanders did not, however, specifically identify any officers who hit Paxton. Additionally, two bystanders reported that the officers were yelling profanities at Paxton, and Anderson testified that the officers told Paxton "that will teach him to go up against a police officer."
Robert Jacquemain, the only officer who testified at trial, painted a different picture of the incident. According to Jacquemain, Paxton exited his vehicle on his own, waved his clenched fists at the officers, and did not obey when Jacquemain told him to get down. When Paxton came toward him, Jacquemain, in fear of his own safety, tackled him to the ground. Jacquemain testified that Paxton resisted arrest and struggled with the officers. Additionally, Jacquemain denied punching or kicking Paxton.
Eventually, the officers handcuffed Paxton and put him in a patrol car.2 Robert Jacquemain and Carson drove Paxton to the Mount Clemens police station. Hey and Pike exited their vehicle only after Paxton had been handcuffed and taken away from the scene. Anderson, one of the neighborhood residents, testified that the remaining officers and Pike lingered at the scene for a few minutes, talking, smoking, and laughing. The officers then returned to the police station. At the police station, Paxton was handcuffed and booked. Paxton was eventually taken to the hospital for treatment of his injuries. He had a number of abrasions and lacerations on his face; his right eye was bruised, and he received stitches.
When Poucher returned to the station, he found Robert Jacquemain and Hey in the squad room. Poucher testified that Robert Jacquemain told him that "we're going to say that he got out of the car, we're going to say that he came at us." Poucher interpreted this to mean that Paxton had been physically injured, and, thus, the officers were going to report that Paxton was the aggressor to avoid "get[ting] in trouble for beating him up." According to Poucher, the officers had discussions regarding their reports, and he was given a copy of Carson's report as a template, so that the reports would coincide with one another. Each officer's report, with the exception of Hey's, indicated that Paxton was the aggressor. The reports of Carson, Poucher, Peter Jacquemain, and Robert Jacquemain all stated that Paxton exited his vehicle, charged at the officers in a threatening manner, and struggled with the officers. Hey's report only recounted his road rage incident with Paxton and merely noted that he observed Paxton's vehicle parked near the patrol cars.
Raymond Langley, a Mount Clemens detective, prepared a warrant request based on these reports. The warrant request recommended that criminal charges be brought against Paxton for felonious assault with a motor vehicle, resisting arrest, and fleeing and eluding. The county prosecutor authorized the warrant and prepared a formal felony complaint.
On October 3, 2003, a preliminary examination was held at the Macomb County District Court to ascertain whether there was sufficient evidence to proceed with criminal charges against Paxton.3 The prosecutor called Carson and Robert Jacquemain as witnesses. Both officers testified that Paxton exited his car in an aggressive fashion and resisted arrest.4
Paxton subsequently filed a civil lawsuit against the city and the officers. Poucher testified that, when he spoke with Robert Jacquemain about Paxton's lawsuit, Jacquemain said that "we needed to stick to the story about [Paxton] getting out of his vehicle." In response to the civil suit, a supervisor at Mount Clemens Police Department launched an internal investigation of the officers. Poucher testified that he thereafter spoke with Carson and Robert Jacquemain and confirmed that he would "stick to the fabricated story."5 Additionally, the FBI began to investigate the incident. During an interview with an FBI agent in March 2003, Robert Jacquemain again asserted that Paxton exited his vehicle on his own, waving his fists. Jacquemain told the agent that he did not see any officers strike or kick Paxton.
In August and September 2003, a federal grand jury investigated the incident. When called to testify, Hey stated he saw nothing and heard nothing with respect to Paxton's arrest. Hey testified that he did not see how Paxton was removed from his car; rather, he only saw Paxton in the rear of the patrol car after he had been taken into custody. Hey further stated that he saw no officers on the scene during the arrest, until Peter Jacquemain walked toward his vehicle after Paxton was in custody. Hey recalled that, when he and Pike were sitting in the vehicle, they discussed the fact that there was "fighting" going on at the scene.
On May 26, 2004, a grand jury returned a nine-count second superseding indictment against Carson, Hey, the Jacquemains, and Gerkey. Count I alleged that Carson, the Jacquemains, and Gerkey assaulted Paxton, thereby depriving Paxton of his constitutional rights under color of law, in violation of 18 U.S.C. § 242. Count II charged Carson, the Jacquemains, Gerkey, and Hey with conspiring to cover up the beating of...
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