U.S. v. Epley

• Citation: 52 F.3d 571
• Decision Date: 24 April 1995
• Docket Number: Nos. 94-5100,s. 94-5100
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Gary F. EPLEY, Ronald J. Pike, and James Goodman, Defendants-Appellants, Cross-Appellees. to 94-5102, 94-5179 and 94-5181.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 571

52 F.3d 571

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Gary F. EPLEY, Ronald J. Pike, and James Goodman,

Defendants-Appellants, Cross-Appellees.

Nos. 94-5100 to 94-5102, 94-5179 and 94-5181.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 2, 1995.

Decided April 24, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied in No.

94-5102 June 9, 1995.

Stephen G. Frye, Asst. U.S. Atty., Office of U.S. Atty., Louisville, KY, Miriam R. Eisenstein (argued and briefed), Dennis J. Dimsey, U.S. Dept. of Justice, Civ. Rights Div., Appellate Section, Washington, DC, for U.S.

C. Fred Partin (argued), Barbara M. Gunther (briefed), C. Fred Partin & Associates, Louisville, KY, for Gary F. Epley.

David A. Lambertus (argued and briefed), Elizabeth O. Kinnaird, Louisville, KY, for Ronald J. Pike.

Samuel Manly, Louisville, KY (argued and briefed), for James Goodman.

Before: GUY, BOGGS, and SILER, Circuit Judges.

BOGGS, Circuit Judge.

Gary Epley, Ronald Pike, and James Goodman were each convicted for their involvement in a conspiracy to violate the civil rights of Ricky Pardue by setting up a false arrest in which they planted drugs and an illegal firearm in his possession. Epley appeals his sentence, Pike appeals his conviction for conspiracy to violate civil rights, in violation of 18 U.S.C. Sec. 241, and his sentence, and Goodman appeals his conviction for conspiracy to violate civil rights, in violation of 18 U.S.C. Sec. 241, and for deprivation of rights under color of law, in violation of 18 U.S.C. Sec. 242. The government cross appeals the calculation of Pike's and Goodman's sentences. We affirm the convictions, but vacate the sentences of Pike and Goodman, and remand for resentencing.

I

The facts of this case are complicated, and involve numerous people. David Tingley and George Tingley owned Resthaven Memorial Park, a cemetery, and were part owners of Special Services, a detective agency located in a house on the premises of Resthaven. Pike was a former Jefferson County policeman, and worked at Resthaven and Special Services. Joanie Pardue was a secretary, first for Special Services, then for Resthaven. She was also the wife of Ricky Pardue, the victim of this crime, and began an affair with David Tingley in the fall of 1990. Epley was a captain in the St. Regis Police Department and operated the Kentuckiana Detective Agency. James Goodman was a police sergeant in the St. Regis Police Department.

The staff of Special Services used Special Services as a repository for weapons. Weapons were stored in the house at the cemetery and in a crypt. They feared that Joanie's husband, Ricky, who knew about their activities and had learned about the affair between his wife and David Tingley, would report their activities to authorities. Their fears were justified--in fact, Pardue offered his services as an informant to the FBI in October 1990. These fears were confirmed when Pardue, arrested after a fight, told the local police that he was working for the FBI. Word of his claim got back to Special Services.

In an effort to discredit Ricky Pardue, Epley and Pike met with David Tingley at Remington's, a restaurant. David Tingley agreed to supply Epley with drugs and an illegal firearm equipped with a silencer. Epley would then find some reason to arrest Ricky Pardue and plant these items in Pardue's possession. David Tingley agreed to pay for the arrest. ¹ Another Special Services employee, John Bersot, was dispatched to the crypt to obtain drugs and guns for the task.

David Tingley received the drugs and guns from Bersot and delivered them to Pike, who delivered them to Epley. Epley then met with Goodman and told Goodman that Ricky has been "causing problems." Epley proposed that Goodman and he should stake out Pardue's home in Louisville. He told Goodman he would pay him $500 for the trouble. ² Goodman borrowed an unmarked white Ford Crown Victoria from another St. Regis officer to use for the stakeout.

The stakeout, on November 1, 1990, in front of Pardue's house, did not go unnoticed. Pardue saw Goodman and Epley, but could not initially identify them. A neighbor, another police officer, also noticed the car. This neighbor testified that he drove by in a marked police car and saw the two men in the car duck as he passed.

Nevertheless, Ricky Pardue left his house, and Goodman and Epley followed him. According to Epley, Goodman exclaimed that Pardue ran a stop sign. ³ Goodman and Epley used their car's lights to signal for Pardue to pull over, but instead he fled and drove back to his house, less than a mile away. Epley and Goodman pulled behind Pardue's car, and left their car with guns drawn. Epley apprehended and handcuffed Pardue in front of his house, and handed him over to Goodman. Goodman took Pardue to the Crown Victoria. Epley searched Pardue's car and "found" the gun and drugs he planted (as well as two other pistols actually belonging to Pardue). Pardue testified that he observed Epley removing the cocaine from his right front pocket, although it is unclear from Pardue's testimony whether Goodman could also see Epley plant the drugs. Epley and Goodman called the Louisville Police Department, and Pardue was taken into custody. Pike drove by during the incident, observed the arrest, and reported back to David Tingley that the plan had been executed.

Over the next several months, Epley and Goodman continued to affirm the validity of the arrest. Epley testified before the grand jury that Pardue ran the stop sign, refused to pull over, attempted to run the St. Regis officers off the road, and reached down in his car as though to grab a weapon. Epley also affirmed that, on searching Pardue's car, he found the cocaine and silenced gun. At the probable cause and suppression hearing in April 1991, which both Epley and Goodman attended, the commonwealth's attorney asked Epley whether the arrest was a set-up and Epley denied it was. Epley testified that Pardue ran the stop sign and that the arrest was legitimate.

The BATF and IRS opened an investigation. Meanwhile, David and George Tingley sold Resthaven and Special Services. The state criminal case against Pardue was dismissed in the fall of 1991. In early 1992, John Bersot began demanding money from David Tingley to keep silent. David Tingley agreed to cooperate with the investigation at that point. Bersot also agreed to testify in exchange for immunity. Epley pled guilty and agreed to cooperate.

At trial, Pike and Goodman were convicted, Pike of conspiracy under Sec. 241 ⁴ and Goodman of both conspiracy under Sec. 241 and deprivation of rights under color of law under Sec. 242. ⁵ Epley was sentenced to 84 months under his plea agreement (in which he pled guilty to one count each of conspiracy to violate civil rights and use of a firearm during a crime of violence, 18 U.S.C. Sec. 924(c), and three counts of willful failure to file income tax returns), and Pike was sentenced to 37 months for his conviction in this case and on the accompanying weapons charge (on appeal as No. 93-5104). Goodman and David Tingley received 3 years of unsupervised probation, six months to be served in a half-way house.

II

We first address the issues raised by appellants Pike and Goodman concerning their convictions. We find that none of these alleged errors require reversal.

A

Goodman raises five issues on appeal. He argues first that the government presented insufficient evidence to convict him of the conspiracy count and the deprivation of civil rights count. Second, he claims that testimony discussing his "silence" and failure to cooperate violated his Fifth Amendment rights. Third, he asserts that he was prejudiced when the court initially denied his severance motion. Fourth, he argues that the court should have declared a mistrial after Epley boasted of passing a polygraph examination. Pike also argues that the admission of the polygraph testimony, although accompanied by an admonition, was prejudicial. Fifth, Goodman claims that the court erred by providing the jury with a jury nullification instruction.

First, we consider whether the government produced sufficient evidence to convict Goodman of the Sec. 241 and Sec. 242 charges. We review the sufficiency of the evidence to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Ellzey, 874 F.2d 324, 328 (6th Cir.1989) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)).

To obtain a conviction for conspiracy to violate civil rights under Sec. 241, the government must prove that Goodman knowingly agreed with another person to injure Pardue in the exercise of a right guaranteed under the Constitution. Anderson v. United States, 417 U.S. 211, 223, 94 S.Ct. 2253, 2261, 41 L.Ed.2d 20 (1974). Specific intent to deprive another of civil rights is an element of the offense that the government must prove beyond a reasonable doubt. See, e.g., United States v. Hamilton, 684 F.2d 380, 384 (6th Cir.), cert. denied, 459 U.S. 976, 103 S.Ct. 312, 74 L.Ed.2d 291 (1982). Proof of the crime of deprivation of civil rights under Sec. 242 also requires the government to show that Goodman had the specific intent to deprive Pardue of a right under the Constitution. Screws v. United States, 325 U.S. 91, 104, 65 S.Ct. 1031, 1036, 89 L.Ed. 1495 (1945); United States v. Senak, 477 F.2d 304, 306 (7th Cir.), cert. denied, 414 U.S. 856, 94 S.Ct. 157, 38 L.Ed.2d 105 (1973). "[O]nce a due process right has been defined and made specific by court decisions, that right is encompassed by Sec. 242." United States v. Stokes, 506 F.2d 771, 774-75 (5th Cir.1975) (citing Screws ). Courts have applied Sec. 242 to punish police officers who have abused their authority under "color of law." See United States v....