U.S. v. Cobb

• Decision Date: 12 June 1990
• Docket Number: 89-5630,Nos. 89-5628,89-5631 and 89-5636,s. 89-5628
• Citation: 905 F.2d 784
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Edward COBB, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ronald Bradley HATCHER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Howard Steven SEARS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Larry Dale KEATON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 784

905 F.2d 784

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Edward COBB, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Bradley HATCHER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Howard Steven SEARS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Larry Dale KEATON, Defendant-Appellant.

Nos. 89-5628, 89-5630, 89-5631 and 89-5636.

United States Court of Appeals Fourth Circuit.

Argued March 9, 1990.

Decided June 12, 1990.

Hunt Lee Charach, Acting Federal Public Defender, Charleston, W.Va., for defendants-appellants.

Linda Frances Thome, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Mark D. Moreland, South Charleston, W.Va., Robert B. Allen, Charleston, W.Va., Kevin B. Burgess, Oak Hill, W.Va., on the brief, for defendants-appellants.

James P. Turner, Acting Asst. Atty. Gen., Jessica Dunsay Silver, U.S. Dept. of Justice, Washington, D.C., Michael W. Carey, U.S. Atty., Charleston, W.Va., on the brief, for plaintiff-appellee.

Before ERVIN, Chief Judge, and HALL and CHAPMAN, Circuit Judges.

K.K. HALL, Circuit Judge:

Thomas Edward Cobb, Ronald Bradley Hatcher, Howard Steven Sears, and Larry Dale Keaton, all former law enforcement officers, appeal from their convictions for depriving Kenneth Wayne Pack of his civil rights by wilfully subjecting him to an excessive use of force, in violation of 18 U.S.C. Sec. 242; and for obstruction of justice, in violation of 18 U.S.C. Sec. 1512(b)(3). Keaton also appeals from a separate conviction for witness tampering, in violation of 18 U.S.C. Sec. 1512(b)(3). We affirm the convictions of appellants Hatcher, Sears, and Keaton. However, finding that the trial court denied appellant Cobb his Sixth Amendment right to counsel, we reverse his convictions.

I.

In early 1987, Keaton was the Chief of Police for the City of Hinton, located in Summers County, West Virginia. Cobb was a city patrolman. Hatcher was the Chief Deputy Sheriff of Summers County, and Sears was a deputy sheriff.

On the night of April 24, 1987, Sears, Keaton, and Hatcher arrested Pack for public intoxication outside the Wagon Wheel, a bar in Hinton. Pack was handcuffed and transported to City Hall. Once there, the officers escorted him to a holding area, known as the "booking room," where they were met by Officer Cobb. Pack and the officers exchanged insults and a heated argument ensued. Keaton struck Pack on the head with a slapjack, knocking him to the floor. The officers then proceeded to beat Pack for almost two hours, insulting and ridiculing him the entire time. Pack remained handcuffed throughout the attack. At no point did he attempt to strike any of the officers. ¹

While Pack was in the booking room, each of the four officers executed affidavits swearing that Pack had assaulted him. Keaton also intimidated John Plumley, a part-time police dispatcher who witnessed the beating, into signing a similar affidavit. Later that evening, arrest warrants based on the affidavits, as well as on a charge of public intoxication, were issued by a city judge and immediately served on Pack. ²

Just before midnight, Keaton and Hatcher took Pack to the hospital for treatment of the injuries he sustained in the beating: a hematoma on the left frontal skull, swelling of the area surrounding the left eye, and a lip so severely lacerated that it required reconstructive surgery. Pack was kept overnight for observation. He was released the next day.

On the basis of this incident, appellants were named in a six-count indictment issued on August 17, 1988. Count I of the indictment charged appellants with violating 18 U.S.C. Secs. 242, 2 by wilfully, and under color of state law, depriving Pack of his "right secured and protected by the Constitution and laws of the United States of America not to be deprived of liberty without due process of law, which includes the right not to be subjected to unnecessary and excessive force." Count II charged appellants with forming a conspiracy to violate 18 U.S.C. Sec. 1512, by concocting a false story to cover up the assault on Pack, and Count III charged Keaton, Sears, and Cobb with a substantive violation of Sec. 1512(b)(3) for the intimidation of Plumley. Similarly, Count IV charged appellants with another violation of Sec. 1512(b)(3) for signing false assault warrants before the city judge. ³

On March 7, 1989, appellants' trial commenced. At the close of the government's evidence, the district court granted all of the appellants' motions for acquittal on Count II as well as appellants Cobb's and Sears' motions for acquittal on Count III.

Each officer elected to testify in his own defense. Officer Cobb concluded his direct examination in the middle of the afternoon on Friday, March 17, 1989. The trial court directed the government to promptly begin its cross-examination. At approximately 4:45 p.m., the court announced its weekend recess, which was to last until 1:30 p.m. the following Monday afternoon. At that point, the government requested the trial court to order Cobb not to discuss his ongoing testimony with anyone, including his attorney, during the weekend recess. The district court granted the motion. Cobb immediately objected to the order, arguing that the restriction deprived him of his Sixth Amendment right to counsel. The objection was overruled. To comply with this order, Cobb did not speak with his attorney at all over the weekend.

At the end of trial, appellants were convicted on all remaining counts. On June 23, 1989, Cobb and Sears were sentenced to one year on Count I and a consecutive two-year period of probation on Count IV. Hatcher received one year on Count I, a consecutive six-month suspended sentence on Count IV, and three years probation. On July 7, 1989, Keaton was sentenced to one year on Count I, a consecutive one-year sentence on Count III, and four years probation on Count IV. These appeals followed. ⁴

II.

Before this Court, appellants raise several arguments. First, and most forcefully, they attack the district court's excessive force instruction on the 18 U.S.C. Sec. 242 counts. Second, appellants argue that their obstruction of justice convictions must be reversed because Counts III and IV of the indictment failed to set forth all essential elements of the underlying Sec. 242 violations. Lastly, appellant Cobb contends that the trial court's March 17, 1989, order, forbidding him to discuss his ongoing cross-examination testimony with his attorney, effectively denied him his Sixth Amendment right to counsel. We address these issues in turn. ⁵

Section 242 of Title 18 of the United States Code makes it a misdemeanor for persons, acting under color of law, to deprive any inhabitant of any state, territory, or district "of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States...." Thus, to convict appellants, the government had to prove beyond a reasonable doubt that (1) appellants were acting under color of law; (2) Pack was an inhabitant of a state; (3) Pack was deprived of a right secured by the Constitution or laws of the United States; and (4) appellants' actions were wilful. United States v. Senak, 477 F.2d 304 (7th Cir.), cert. denied, 414 U.S. 856, 94 S.Ct. 157, 38 L.Ed.2d 105 (1973), citing United States v. Jackson, 235 F.2d 925, 927 (8th Cir.1956). As alleged in the indictment, appellants deprived Pack "of liberty without due process of law, which includes the right not to be subjected to unnecessary and excessive force." Appellants' challenges to their convictions centers on the proper characterization of this right and is focused on the court's instruction on the last two elements of a Sec. 242 violation.

As to element (3), the district court charged:

Third, that the conduct of the defendant deprived Kenneth Pack of his constitutional right not to be subjected to unreasonable and excessive force;....

In considering whether or not a defendant deprived Kenneth Pack of his constitutional right not to be subjected to unreasonable and excessive force, you should determine whether the force used by that defendant was necessary in the first place or was greater than the force that would appear reasonably necessary to an ordinary, reasonable, and prudent person.

A law enforcement officer is justified in the use of any force which he reasonably believes to be necessary to effect an arrest or hold someone in custody and of any force which he reasonably believes to be necessary to defend himself or another from bodily harm.

Provocation by mere insulting or threatening words will not excuse a physical assault by a law enforcement officer. Mere words, without more, do not constitute provocation or aggression on the part of the person saying those words. No law enforcement officer is entitled to use force against someone based on that person's verbal statements alone.

In determining whether the force used in this case was excessive or unwarranted, you should consider such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

As to element (4), the court instructed:

Fourth, that the defendant willfully and knowingly intended to subject Kenneth Pack to the deprivation of his constitutionally protected right....

[The government] must show that a defendant had the specific intent to deprive Kenneth Pack of his right not to be subjected to unreasonable and excessive force. If you find that a defendant knew what he was doing and that he intended to do what he was doing, and if you find that he did violate a constitutional right, then you may conclude that the defendant acted with the specific intent to deprive the victim...