U.S.A. v. Conley, 98-2181
| Decision Date | 07 April 1999 |
| Docket Number | No. 98-2181,98-2181 |
| Citation | 186 F.3d 7 |
| Parties | (1st Cir. 1999) UNITED STATES, Appellee, v. KENNETH M. CONLEY, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Willie J. Davis, with whom Frances L. Robinson, and Davis, Robinson & White, LLP were on brief, for appellant.
S. Theodore Merritt, Assistant United States Attorney, with whom Bill Lann Lee, Acting Assistant Attorney General, Donald K. Stern, United States Attorney, and Sheryl L. Robinson, Trial Attorney, Criminal Section, were on brief, for appellee.
Before Torruella, Chief Judge, Selya and Lynch, Circuit Judges.
The underlying case in this appeal stems from an April 1997 federal grand jury investigation into an incident in which Michael Cox, a plain clothes Boston police officer, was allegedly mistaken for a fleeing suspect and beaten by unknown police officers in violation of 18 U.S.C. § 242. On May 29, 1997, defendant-appellant Kenneth Conley, a Boston police officer at the scene of the incident, testified before the grand jury pursuant to an immunity order. Conley was subsequently convicted of perjury and obstruction of justice as a result of his grand jury testimony and was sentenced to thirty-four months imprisonment and a $6,000 fine. Conley now appeals his conviction.
At approximately 2:30 a.m. on January 25, 1995, a shooting occurred at a restaurant on Blue Hill Avenue in the Grove Hall section of Boston. It was mistakenly broadcast over the police radio that the victim of the shooting was a Boston police officer. The suspects were described as four black males driving a gold Lexus. The mistaken broadcast of a police officer down generated a massive response by police cruisers from several different districts. A chase ensued.
The suspects led the police on a lengthy car chase spanning three police districts and several towns. The closest police vehicle behind the Lexus throughout most of the chase was an unmarked police cruiser occupied by plain clothes officers Craig Jones and Michael Cox. Jones was the driver of the vehicle, and Cox occupied the passenger seat.
The car chase finally ended when the suspects drove down a dead end street known as Woodruff Way in Mattapan. When the suspects arrived at the cul-de-sac at the end of Woodruff Way, the Jones/Cox unmarked cruiser was the first police car on the scene, and skidded to a stop on the left side of the Lexus. The second police cruiser to arrive was occupied by uniformed officers David Williams and James Burgio. Williams and Burgio pulled in on the right side of the Lexus. Uniformed officer Ian Daley arrived next, and pulled in directly behind the Lexus. Immediately behind Daley was uniformed officer Richard Walker, followed by defendant-appellant Conley and his partner, Robert Dwan. The Conley/Dwan vehicle was thus the fifth police vehicle on the scene. Conley and Dwan wore plain clothes and occupied an unmarked police vehicle.
As the gold Lexus came to a stop at the end of Woodruff Way, Cox observed one of the suspects, later identified as Robert Brown, exit the gold Lexus from the passenger side, and run to the right, towards a fence. In pursuit, Cox exited his vehicle from the passenger side, ran behind the Lexus, and followed the suspect to the right, towards the fence. Cox described the suspect as a black male wearing a brown leather jacket. Cox, also black, was wearing jeans, a black hooded sweatshirt, and a three-quarter length black down jacket.
Cox chased the suspect to the fence, approximately twenty feet away. During the chase, Cox was "about three feet" behind the suspect. (Tr. Vol. II at 31). When the suspect got to the fence, the suspect began climbing over it, catching his jacket for a moment on the top. At that moment, Cox reached up and attempted to grab the suspect and pull him back over the fence. Cox testified that approximately two seconds elapsed between the time that the suspect caught his jacket on the top of the fence and the time when Cox grabbed the suspect's jacket in an attempt to pull him back over the fence. (See Tr. Vol. II at 14, 76). Cox's attempt failed, however, and the suspect dropped down on the other side of the fence and started to run. Cox did not observe anyone else climb over the fence between him and the suspect.
After the suspect landed on the other side, Cox took a step back from the fence, considering for a moment whether to follow over the fence. A moment later, Cox placed both his hands up on the fence, as if to go over. At that point, Cox felt a sharp blow on the back of his head, like a metal pipe. The next thing he knew he was on the ground on his hands and knees, trying to get up. He observed a white male standing in front of him, wearing boots and a dark uniform. Cox was repeatedly kicked in the head, back, face, and mouth by several different people all at once. The beating did not stop until Cox heard someone yell: "Stop, stop, he's a cop, he's a cop." (Tr. Vol. I at 88). When the kicking finally stopped, Cox attempted to get up from the ground. When he looked up, he realized that there was no one around to assist him. Cox was forced to use the bumper of a police car to pull himself up from the ground.
In April 1997, a federal grand jury commenced an investigation into the beating of Officer Michael Cox. The grand jury sought to determine the identity of the officers who attacked Michael Cox and/or deliberately failed to prevent the assault and to get medical attention for him once they knew he was injured. On May 29, 1997, defendant-appellant Conley, an officer present at the scene, was called before the grand jury to recount the events he observed and the actions he took at Woodruff Way in the early morning hours of January 25, 1995.
Consistent with Cox's version of events, Conley testified that when he arrived at the dead end on Woodruff Way, his vehicle was about the fourth or fifth police car in line behind the suspects' gold Lexus, approximately forty feet away. (See Tr. Vol. II at 229-30, 232). Also consistent with Cox's account, Conley testified that once the Lexus skidded to a stop, a black male wearing a brown leather jacket exited from the passenger side of the Lexus and ran to the right, towards a fence. Conley exited his vehicle in pursuit. While in pursuit, Conley observed the suspect scale the fence, drop down on the other side, and start to run. (See id. at 233).
Conley testified that he made all of these observations as he pursued the suspect, beginning from the time the suspect first exited the gold Lexus up to the time when the suspect landed on the other side of the fence and started to run. According to Cox's testimony, Conley made these observations at precisely the same time that Cox was chasing "right behind" the suspect. (Tr. Vol. I at 77).1 However, before the grand jury, Conley testified that during that time he did not observe anyone -- either in plain clothes or in uniform -- between him and the suspect. In direct conflict with Cox's account, Conley testified as follows:
Q.All right. Now, officer Conley, when you were chasing the suspect as he went over to the fence, did you see another individual chasing him as well?
A.No, I did not.
Q.Did you see anyone else in plain clothes behind him as he went towards the fence?
A.No, I didn't.
Q.Did you see, as he went on top of the fence or climbed the fence, another individual in plain clothes standing there, trying to grab him?
A.No, I did not.
Q.When you saw the suspect get to the top of the fence, did you see another individual in plain clothes grabbing part of his clothing --
A.No, I did not.
Q.-- as he went over the fence?
A.No, I did not.
Q.So that didn't happen; is that correct? Because you saw the individual go over the fence?
A.Yes, I seen [sic] the individual go over the fence.
Q.And if these other things that I've been describing, a second -- another plain clothes officer chasing him, and actually grabbing him as he went to the top of the fence, you would have seen that if it happened; is that your testimony?
A.I think I would have seen that.
(Tr. Vol. II at 235-36). Conley further testified that when he got to the fence, he climbed over it in "approximately the same location" that he had observed the suspect go over the fence, and continued in pursuit. (Id. at 239). Eventually, after chasing the suspect for approximately one mile, Conley apprehended him and effected an arrest.
Two other individuals, present at the scene, testified at Conley's trial: Officer Walker, and the suspect, Robert Brown. Officer Walker corroborated Cox's version of events up to the point when the suspect climbed over the fence and dropped down on the other side:
Q.Did you see - did Officer Cox reach for the person on the fence?
A.Yes, he did.
Q.What did the person who went over the fence do once they went over the fence?
A.Once he went over the fence, he fell.
. . .
Q.What did Officer Cox do once the person went over the fence?
A.I don't know.
(Tr. Vol. II at 32). After observing the suspect fall on the other side of the fence, Walker ran from his car straight ahead to a hole in the fence. Walker did not see Cox put his hands on the fence, as if to go over. The last thing Walker saw Cox do was reach for the suspect caught on the fence. (See id. at 33).
Once through the hole in the fence, Walker ran to the right, in pursuit of the fleeing suspect. As he ran, he came upon two white, plain clothes police officers standing in the street. Walker testified that no one had passed by him from the time that he ran through the hole in the fence to the time when he encountered the two white police officers. He did not...
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