U.S. v. Conley, 00-2141
| Citation | 249 F.3d 38 |
| Decision Date | 06 April 2001 |
| Docket Number | No. 00-2141,00-2141 |
| Parties | (1st Cir. 2001) UNITED STATES, Appellant, v. KENNETH M. CONLEY, Defendant, Appellee. Heard |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge] S. Theodore Merritt, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, Bill Lann Lee, Assistant Attorney General, and William R. Yeomans, Acting Assistant Attorney General, Civil Rights Division, United States Department of Justice, were on brief, for appellant.
Willie J. Davis, with whom Frances L. Robinson and Davis, Robinson & White, LLP were on brief, for appellee.
Before Torruella, Chief Judge, Bownes, Senior Circuit Judge, and Boudin, Circuit Judge.
Boston police officer Kenneth Conley was convicted of perjury based on his testimony to a grand jury concerning the beating of a fellow officer, Michael Cox, who was allegedly mistaken by police for a fleeing suspect. After this court affirmed his conviction, United States v. Conley, 186 F.3d 7 (1st Cir. 1999), cert. denied, 529 U.S. 1017 (2000), Conley moved for a new trial on the basis of newly discovered evidence, Brady violations, and jury misconduct. The district court allowed the motion on the ground that a new trial was warranted "in the interests of justice," and the government appeals. We reverse the order for a new trial on the ground that the district court did not apply the correct legal test.
On the morning of January 25, 1995, several Boston Police cruisers from different districts responded to the report of a shooting at a restaurant in Boston. The police chased four black male suspects who fled the restaurant in a Lexus until they reached a dead-end street in Mattapan. The suspects ran from the car; one, Robert Brown, ran toward a fence on the right about twenty feet away. Brown was wearing a brown leather jacket.
The first police car in pursuit of the suspects stopped to the left of the Lexus. It was an unmarked cruiser driven by Officer Craig Jones; his partner, Officer Michael Cox, was in the passenger seat, and a security guard, Charles Bullard, was in the back seat. Cox, who is black, was dressed in plain clothes and was wearing jeans, a black hooded sweatshirt, and a black down jacket.
Cox later testified that he saw Brown exit the passenger side door of the Lexus and chase "right behind" Brown directly to the fence. As Brown climbed the fence, his jacket caught at the top. Cox stated that he grabbed Brown's jacket in an attempt to pull him back over the fence; Brown, however, climbed over the top of the fence and dropped down the other side. Cox stated that no one was between him and Brown at any time.
Cox testified that as he was preparing to climb the fence in pursuit of Brown, he was struck from behind with a blunt object by police officers who apparently mistook him for a suspect. The officers beat and kicked him in the head, back, face and mouth. Cox then heard an officer shout, "Stop, stop, he's a cop, he's a cop," and the officers fled. Cox, who was bleeding and seriously injured, was later taken by ambulance to a hospital for medical treatment.
A. Conley's Grand Jury Testimony
In April, 1997, a federal grand jury began investigating the beating to discover which officers attacked Cox, failed to prevent the assault, and failed to get him medical treatment. It subpoenaed Conley to testify pursuant to an immunity agreement. In Conley, 186 F.3d at 12-13, we summarized his testimony as follows:
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. 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. 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. 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.
(Internal record citations omitted.)
Conley then testified to facts directly contradicting Cox's version of events:
Conley, 186 F.3d at 13. 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 chasing him. Eventually, Conley caught up to the suspect and arrested him. Id.
On August 14, 1997, Conley was charged in a three-count indictment arising from his grand jury testimony. Count I charged that Conley committed perjury in violation of 18 U.S.C. § 1623 by denying that he saw Cox pursue and grab a suspect as that suspect ran toward and climbed a fence. Count II charged that Conley also committed perjury when he denied that he saw Boston police officers strike and kick Cox. Count III charged that Conley obstructed the grand jury investigation in violation of 18 U.S.C. § 1503 by giving false, evasive and misleading testimony and by withholding information.
At trial, the government presented evidence that contradicted Conley's grand jury testimony and supported Cox's version of events. Brown, the suspect arrested by Conley, testified that as he ran toward the fence, he saw a black man wearing black clothing running after him. He stated that as he was scaling the fence, he felt someone touch his foot. After he reached the other side of the fence, he looked back and saw a black man wearing a black hood start to climb the fence. Brown then saw an officer strike Cox from behind, and saw other officers beating him. Brown further testified that he made eye contact with an officer, later identified as Conley, who was standing next to the officers who were beating Cox. Conley then chased and apprehended Brown.
Officer Richard Walker, whose cruiser arrived at the dead-end after Cox's car, testified at trial that he saw Cox running in front of him from left to right in very close pursuit of a black male suspect wearing brown. Walker saw Cox running "about three feet behind" Brown, and saw Brown climb the fence and Cox reach to grab him. He testified that "less than two seconds" elapsed between the time he saw Brown on the top of the fence and when he saw Cox grab at him. When Walker saw Brown drop down the other side of the fence, Walker ran straight ahead through a hole in the fence down a hill, falling twice. When Walker got up, he encountered two white plainclothes officers, including a "tall" officer who eventually caught Brown.
On June 10, 1998, the jury returned a verdict of guilty on Counts I and III and not guilty on Count II. The district court sentenced Conley to 34 months imprisonment, but stayed the execution of the sentence pending appeal.
This court affirmed Conley's conviction on July 23, 1999. We concluded that the evidence was sufficient to support the conviction:
At trial, the government presented ample circumstantial evidence from which a rational jury could conclude that Conley's statements were false beyond a reasonable doubt. By comparing Conley's testimony about the timing and location of his actions with the testimony of Cox, Walker, and Brown, the jury reasonably concluded that Conley lied when he stated that he did not observe Cox chasing the suspect. Conley testified that upon arrival at the scene, he observed Brown exit from the passenger side of the Lexus, run to the right, and climb over the fence. Most significantly, Conley testified that "within seconds of seeing [the suspect] go over" the fence he scaled the fence at the same location. Both Cox and Walker placed Cox at the exact same time at the exact same place where Conley claims to have climbed over the fence. According to their testimony . . . Cox was "right behind" Brown, approximately three feet behind him, as Brown approached the fence. When Brown reached the fence, Cox was even closer. At that point, Cox was close enough to make contact with Brown and attempt to pull him back over the fence. Brown corroborated this version of events when he testified that a black man wearing a ...
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