U.S. v. McKenzie

• Decision Date: 31 July 1985
• Docket Number: Nos. 83-1221,84-1507 and 84-1508,s. 83-1221
• Citation: 768 F.2d 602
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John E. McKENZIE, Dale Bonura and Stephen Farrar, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 602

768 F.2d 602

UNITED STATES of America, Plaintiff-Appellee, v. John E. McKENZIE, Dale Bonura and Stephen Farrar Defendants-Appellants.

Nos. 83-1221, 84-1507 and 84-1508.

United States Court of Appeals, Fifth Circuit.

July 31, 1985.

Ralph Capitelli, New Orleans, La., for McKenzie.

Ralph S. Whalen, Jr., New Orleans, La., for Bonura and Farrar.

William R. Yeomans, Wm. Bradford Reynolds, Walter W. Barnett, U.S. Dept. of Justice, Civ. Rights Div., Appellate Sect., Washington, D.C., for the U.S.

Appeals from the United States District Court for the Northern District of Texas.

Before CLARK, Chief Judge, RANDALL, and JONES, Circuit Judges.

CLARK, Chief Judge:

Defendants appeal their convictions under 18 U.S.C. Sec. 241 for conspiring to deprive citizens of their civil rights and under 18 U.S.C. Sec. 2 and Sec. 242 for illegally depriving Robert Davis of his liberty and for failing to keep Davis free from harm while in official custody. We affirm.

I

Defendants are officers of the New Orleans Police Department. In 1980 a fellow officer, Gregory Neupert, was killed in the Algiers area of that city. Sergeant John McKenzie commanded the investigation. Detectives Dale Bonura and Stephen Farrar, along with the other defendants, were among those assigned to assist McKenzie.

Seven of these officers were indicted for conspiracy and four counts of criminal civil rights violations because of their conduct during that investigation. Four officers were acquitted completely. The appellants were convicted of conspiracy and one substantive count. They were acquitted of the three other charges.

The conspiracy count charged that these officers, acting under color of law, had conspired to unlawfully obtain information about Officer Neupert's death. According to the relevant portions of the indictment, the defendants accomplished their objective by bringing residents of Algiers to police headquarters for questioning. Several of these individuals were detained, sometimes in cells, for long periods of time. In some cases the detention lasted as long as twelve to sixteen hours. Some of these individuals were handcuffed or tied to a chair during their questioning. Several were hit with fists or books or both. Johnny Brownlee and Robert Davis were also "bagged," a process whereby the officers placed a bag over the victim's head and temporarily sealed the bottom to cut off the air supply. McKenzie, Bonura, and Farrar drove Davis to a secluded area in Algiers where he was beaten and threatened with a gun. Bonura and Farrar also drove Brownlee to a wooded area, where he was beaten and threatened by other officers.

According to the substantive count of which these defendants were convicted, while acting under the color of state law and aiding and abetting each other, they assaulted Davis, thereby depriving him of his liberty without due process of law and violating his right to be kept free from harm while in official custody.

Defendants filed a post-trial motion for a judgment of acquittal notwithstanding the verdict or, in the alternative, for a new trial. Their motion was based on five claims: (1) the evidence was insufficient; (2) a juror misrepresented a fact during voir dire; (3) the government failed to provide Jencks and Brady material; (4) the prosecutor's closing remarks were improper; and (5) the court improperly commented on the prosecutor's closing argument and gave an erroneous jury instruction in connection with that argument. They also moved for an evidentiary hearing on their allegation that the government had withheld evidence that it was obliged to give the defense under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and the Jencks Act, 18 U.S.C. Sec. 3500. The evidence in question consisted of a videotaped interview of Davis by the attorney representing him in a civil suit arising out of these same events and the transcript of an interview of Davis by Department of Justice personnel on December 4, 1980. The district court denied all motions.

II

On appeal the defendants contend the record does not contain sufficient evidence to support the verdict. They also assert that they are entitled to a new trial because of the alleged violations of the Jencks Act and Brady, or at least to an evidentiary hearing to determine whether evidence was improperly withheld. Finally, they argue that the convictions must be reversed because of prosecutorial misconduct.

All of these arguments are without merit.

A. Sufficiency of the Evidence.

Defendants contend that the evidence is insufficient to support the jury's verdict. Our evaluation of their argument is governed by the standards set out in Glasser and Bell:

The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983) (footnote omitted).

United States v. Silva, 748 F.2d 262, 265 (5th Cir.1984). When examined in light of these principles, the testimony supports the jury's verdict on both counts.

1. The substantive offense.

Both Davis and Oris Buckner, another detective assigned to the Neupert investigation, testified that Davis was beaten by several officers during his interrogation. Buckner, who testified under a grant of immunity, admitted that he had participated in the beating. Davis could not identify any of the officers who hit him except for Buckner and Officer Le Blanc, who was acquitted. In fact, he stated that neither of the two officers who picked him up [Bonura and Farrar] were present. Buckner, however, testified that Bonura and Farrar beat and bagged Davis while questioning him. Bonura and Farrar both testified that they had interviewed Davis, although they denied mistreating him.

Neither Davis nor Buckner implicated McKenzie in any abuse of Davis at the police station. However, McKenzie admitted that he was in and out of the room while Davis was being interrogated. This is sufficient to support the conclusion that he was aware of what was transpiring and did not stop it.

Davis also testified that three officers drove him from police headquarters to a secluded area in Algiers where he was beaten and threatened with a gun by several policemen. He could not identify these officers and testified that he did not remember whether the two officers who had picked him up were present. Buckner gave no testimony related to this incident. The three appellants testified that they did take Davis away from the station for a short time, but that they merely drove him to the scene of Neupert's murder where Davis described what he had seen and pointed out the house of Johnny Brownlee, whom he identified as another witness.

After hearing all the evidence, the jury was faced with a basic conflict: Davis and Buckner testified that Davis had been beaten and defendants maintained that he had been treated properly. The weighing of conflicting evidence and inferences and the determination of the relative credibility of witnesses is a function of the jury. Boeing Co. v. Shipman, 411 F.2d 365, 375 (5th Cir.1969) (en banc). Defendants vigorously cross-examined Davis and Buckner to show the jury any inconsistencies in their testimony. In their closing arguments, they emphasized these inconsistencies and Davis's inability to identify any of the defendants convicted as having abused him. By returning a verdict of guilty on this count, the jury implicitly accepted the testimony of Buckner and Davis as credible.

We cannot reassess the validity of their decision, but must accept all credibility choices that tend to support the jury's verdict. United States v. Davis, 752 F.2d 963, 968 (5th Cir.1985); United States v. Silva, 748 F.2d 262, 266 (5th Cir.1984). Nor can we declare the testimony of Davis and Buckner to be incredible as a matter of law unless it "is so unbelievable on its face that it defies physical laws...." United States v. Lerma, 657 F.2d 786, 789 (5th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1279, 71 L.Ed.2d 463 (1982), quoted in United States v. Reed, 715 F.2d 870, 874 (5th Cir.1983). The weaknesses in the testimony of Davis and Buckner do not rise to this standard. Their testimony, along with the testimony of the defendants themselves, provides substantial support for the jury's verdict. Therefore the convictions on the substantive count are affirmed.

2. The conspiracy count.

The sufficiency of the evidence to support a conspiracy conviction is reviewed under the same standard as set forth above. United States v. Malatesta, 590 F.2d 1379, 1382 (5th Cir.) (en banc), cert. denied sub nom. Bertolotti v. United States, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979). The evidence must show that there was an agreement between two or more persons to commit a crime and that one conspirator performed an overt act in furtherance of the agreement. United States v. Saenz, 747 F.2d 930, 937 (5th Cir.1984). Direct evidence of a formal agreement is not necessary. United States v. Wilson, 657 F.2d 755, 759 (5th Cir.1981), cert. denied, 455 U.S. 951, 102 S.Ct. 1456, 71 L.Ed.2d 667 (1982). "[A] common purpose and plan may be inferred from a ' "development and collocation of circumstances." ' " Glasser v. United States, 62 S.Ct. 457, 469 (1942) (citation omitted); Malatesta, 590 F.2d at 1381. Proof that the defendants acted in concert to perform acts in furtherance of the purpose of the charged conspiracy can be used as circumstantial evidence from which the jury may infer the...