U.S. v. McQueeney

Decision Date29 March 1982
Docket Number81-1559,Nos. 81-1558,s. 81-1558
Citation674 F.2d 109
PartiesUNITED STATES of America, Appellee, v. Francis J. McQUEENEY, Defendant, Appellant. UNITED STATES of America, Appellee, v. Richard Rodney PATTERSON, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

John D. Lynch, Warwick, R. I., and William A. Dimitri, Jr., Providence, R. I., for appellants.

Peter C. Canfield, Atty. Dept. of Justice, with whom Wm. Bradford Reynolds, Asst. Atty. Gen. and Walter W. Barnett, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellee.

Before CAMPBELL and BREYER, Circuit Judges, and GARRITY, * District Judge.

GARRITY, District Judge.

The sole issue raised by this appeal is whether there was sufficient evidence to sustain the judgments of conviction of the trial court. In January of 1981, Francis J. McQueeney and Richard R. Patterson, undercover policemen with the Providence Police Department, were indicted by a federal grand jury in the District of Rhode Island on five counts, each of which charged both of them with violating 18 U.S.C. §§ 2 and 242. 1 Count I charged the defendants with violating the civil rights of Jeffrey Condon by assaulting him. Counts II through V each charged them with violating the civil rights of one person: Condon's in Count II and those of three of his companions, Richard Schneiderhan, Robert Salesses and Paul Hansen, in Counts III, IV and V, by willfully arresting them without probable cause.

The defendants pleaded not guilty on all counts and were tried jointly before a jury. At the close of the Government's evidence and again at the close of all of the evidence, the defendants moved for judgments of acquittal on all counts. The trial judge denied their motions on both occasions.

On March 25, 1981, the jury returned a verdict finding McQueeney guilty of Counts III, IV and V and Patterson guilty of Counts I, III, IV and V. It acquitted McQueeney of assaulting and otherwise abusing Condon (Count I) and acquitted both McQueeney and Patterson of falsely arresting Condon (Count II). Defendants now appeal. They allege no error in the district court's instructions to the jury. Rather, they challenge the sufficiency of the evidence used to support their convictions.

In evaluating appellants' contentions, our inquiry is a narrow one. We must determine whether, after considering the evidence as a whole, and taking it in the light most favorable to the Government, together with all legitimate inferences to be drawn therefrom, a rational trier of fact could have found guilt beyond a reasonable doubt. Jackson v. Virginia, 1979, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; United States v. Patterson, 1 Cir. 1981, 644 F.2d 890, 893; United States v. Indelicato, 1 Cir. 1979, 611 F.2d 376, 384. We conclude that one could. Accordingly, we affirm each of the appellants' convictions.

I. The Evidence Below

The parties presented conflicting evidence below and, as a result, the case turned on the credibility of witnesses. Viewed in the light most favorable to the Government, the record establishes the following. At approximately 7:00 p. m. on October 10, 1979, six students at Rhode Island College met for dinner at a restaurant in Providence. At about 8:00 p. m they left the restaurant to return to the college. As they walked to their cars, one of them, Schneiderhan, threw a snowball at one of the other students, Salesses. The snowball missed Salesses but hit a passing car occupied by appellants McQueeney and Patterson. The car turned around and pulled to a stop near the students. McQueeney and Patterson got out of the car and asked who threw the snowball. Although they were on-duty police officers, McQueeney and Patterson were working undercover. They were not in uniform and their car was unmarked. Neither identified himself to any of the students as a police officer.

None of the students admitted to throwing the snowball. One of them, Jeffrey Condon, told the defendants, "It wasn't me, maybe it was one of you guys." McQueeney responded by punching Condon in the face and pushing him back against a truck. In an attempt to protect himself and to subdue McQueeney, Condon, an accomplished wrestler and an assistant wrestling coach at his college, grabbed McQueeney by the legs and, by means of a wrestling maneuver called a double-leg takedown, lifted McQueeney off the ground by his legs and set him down on his back in the street, his legs still in the air. Condon, on his knees, then held McQueeney subdued in this position by maintaining his grasp on McQueeney's legs.

Appellant Patterson approached Condon from the side and began to kick him in an effort to free McQueeney. As he did so, several of the students moved forward to force him to stop. Patterson pulled a gun, pointed it at the students, and told them to get back on the sidewalk or he would blow their heads off. Three of the students, Schneiderhan, Salesses and Paul Hansen, returned to the sidewalk and remained on the scene. One of the other two, Richard James, fled back to the restaurant and telephoned the police. James, who later testified that he was "hysterical", told the police dispatcher where he was and said "something like ... '(T)here's a maniac out on the road. One of them's got a gun, beating up a friend of mine.' "

Patterson hit Condon three times over the head with the gun, yelling to the students on the sidewalk, "Who's going to help your friend now?" Condon cried for help and, dazed, let go of McQueeney. McQueeney grabbed Condon, who was bleeding from the head, and dragged him to the unmarked police car. Either McQueeney or Patterson then reached into the car, pulled out a microphone, and radioed for "backup." This call for backup was the first indication the students had that Patterson and McQueeney were police officers. After the call, Patterson ordered Schneiderhan, Salesses and Hansen to stand against the hood of the car. They did so and Patterson began patting them down. Meanwhile, McQueeney held Condon by his hair in the car, and, while shaking Condon's head, questioned him again about the snowball.

Almost immediately after the call for backup, a number of police cars and vans arrived at the scene. Schneiderhan, Salesses and Hansen were handcuffed, taken to the Providence police station, held for approximately two hours and released. They were not told why they had been arrested nor were they charged. While at the station, Schneiderhan was escorted to the bathroom by McQueeney and Patterson. In the bathroom, Patterson told Schneiderhan that it was "just the two of them" and said "let's see how big a man you are." Schneiderhan replied that his father had taught him better than to "mess" with police officers at a police station. Before Schneiderhan, Salesses and Hansen were released, Patterson told the three that he had not wanted to "hassle college kids."

Condon was taken from the scene by police officers to a local hospital, where he received medical treatment, including a running suture, for the laceration on his head. He was then taken to the Providence police station, where he was met by Patterson. Patterson told Condon that he was sorry about what had happened, that it had been a big mistake, and that he had not realized that he had been dealing with a college student. Condon further testified When I was brought up to the office I was put into the holding cell. I can remember Officer Patterson saying a few things. One of the things that he said was that, he said, "You're pretty tough." He said, "You really handled my partner out there on the street, and he feels intimidated by you because of that, and as a result he wants to press charges against you, but I'm trying to get him to drop the charges." * * * Also at one time, when he came to visit me, he began looking at his hands, and he was kind of shaking his hand, and he said to me that, he said, "Boy, you have a pretty hard head," and I said, "What do you mean?" And he said, "My hand is really swollen from where I hit you on the head." And I said, "You didn't hit me on the head with your hand, you hit me with a bottle." He said, "No, it was my wedding band that cut your head." And I didn't say anything, I just remained silent, and the only other thing that I can really recall about what was said to me is he later came down and he had good news for me, he said that they were going to release me. He also told me that the charges had been reduced to misdemeanor charges, and he said that the reason that I had to be charged was because of the cut on my head.

Condon was charged with two misdemeanor offenses, throwing a projectile at a moving vehicle and simple assault, and released. He pleaded not guilty to each offense, and the charges were eventually dismissed. The day after the incident leading to his arrest, Condon filed a civil rights complaint against the appellants with the F.B.I. 2

Count I

Appellant Patterson argues that there was insufficient evidence to sustain the jury's conclusion that he willfully assaulted and otherwise abused Condon (Count I). Specifically, he contends that the Government's evidence establishes that his use of force on Condon was reasonably necessary to arrest Condon and defend McQueeney. We disagree.

As appellant concedes and the trial judge correctly instructed the jury, a police officer may use only such force as is reasonably necessary to effect an arrest or to defend himself or others from bodily harm. See, e.g., United States v. Stokes, 5 Cir. 1975, 506 F.2d 771, 776. (The "constitutional right to due process includes ... a right not to be treated with unreasonable, unnecessary or unprovoked force by those charged by the state with the duty of keeping accused and convicted offenders in custody.") Accord, R.I.Gen.Laws § 12-7-8 ("... (N)o unnecessary or unreasonable force shall be used in making an arrest."); State v. Gelinas, 1980, R.I., 417 A.2d 1381, 1385; State v....

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