U.S. v. Messerlian
| Decision Date | 04 December 1987 |
| Docket Number | Nos. 86-5323,86-5345,s. 86-5323 |
| Parties | UNITED STATES of America v. MESSERLIAN, Harry H., Appellant in 85-5323. UNITED STATES of America v. WOLKOWSKI, Henry F., Appellant in 86-5345. |
| Court | U.S. Court of Appeals — Third Circuit |
Joseph A. Hayden, Jr. (argued), Hayden & Perle, Hoboken, N.J., Matthew P. Boylan
(argued), Theodore V. Wells, Jr., Lowenstein, Sandler, Brochin, Kohl, Fisher, Boylan & Meanor, Roseland, N.J., for appellants.
Lisa J. Stark (argued), U.S. Dept. of Justice, Civil Rights Div., Washington, D.C., for appellee.
Before HIGGINBOTHAM and STAPLETON, Circuit Judges, and CONABOY, District Judge. *
This appeal arises from the convictions and sentences of New Jersey State Troopers Harry H. Messerlian and Henry F. Wolkowski, in connection with the death of arrestee Joseph P. Topolosky, while in police custody, following a traffic accident on the New Jersey Turnpike in July, 1982. For the reasons set forth below, we will affirm defendants-appellants' convictions and sentences on all counts.
On July 31, 1982, Joseph P. Topolosky was pronounced dead on arrival at the St. James Hospital in Newark, New Jersey, following his arrest for driving while intoxicated. Shortly thereafter, New Jersey state authorities initiated an investigation into the events that led to Topolosky's death. On November 24, 1982, a grand jury in Union County, New Jersey, returned a one count indictment that charged Trooper Messerlian with second-degree manslaughter. See N.J.Stat.Ann. Sec. 2C:11-4(b)(1) (West 1982). Following the discovery of new evidence, however, the matter was submitted to a second Union County grand jury, which voted not to return an indictment against Messerlian. Consequently, the original manslaughter indictment was dismissed on April 28, 1983.
On July 25, 1985, following an investigation by the United States Department of Justice, a federal grand jury returned a multiple count indictment against Messerlian, charging him with violations of 18 U.S.C. Sec. 242 (1982) 1 (deprivation of civil rights), 18 U.S.C. Secs. 371 and 1503 (1982) 2 (conspiracy to obstruct justice) and 18 U.S.C. Sec. 1623 (1982) 3 (false declarations). The same indictment charged appellant Henry F. Wolkowski with conduct in violation of 18 U.S.C. Sec. 371 (conspiracy to obstruct Following a three month trial before the Honorable Anne E. Thompson, 5 the jury returned a unanimous verdict of guilty on all counts against Messerlian. Wolkowski was found guilty of conspiring to obstruct justice and not guilty of making false declarations. Subsequently, both appellants filed motions for judgments of acquittal, or alternatively, for new trials. After a hearing, the district court entered an order on April 29, 1986, denying all post-trial motions. On May 13, 1986, the district court sentenced Messerlian to concurrent terms of ten years imprisonment on Count 1, three years imprisonment on Count 2 and three years imprisonment on Count 3. Wolkowski was sentenced to one year imprisonment on his conviction for conspiring to obstruct justice. On May 12, 1986, the district court granted and denied motions by Wolkowski and Messerlian, respectively, for bail pending appeal. On June 16, 1986, this Court vacated the district court's order denying Messerlian bail pending appeal. United States v. Messerlian, 793 F.2d 94 (3d Cir.1986). These appeals followed and were consolidated by order of this Court dated August 13, 1986.
justice) and 18 U.S.C. Sec. 1623 (false declarations). Specifically, the indictment charged that Messerlian, acting under color of law, fatally struck Joseph P. Topolosky and thereby willfully deprived Topolosky of his constitutional right to liberty without due process of law in violation of 18 U.S.C. Sec. 242. The indictment further charged that Messerlian and Wolkowski, together with State Troopers George J. Mangione and Brian Slattery, 4 conspired in violation of 18 U.S.C. Sec. 1503 (1982) to cover up the alleged assault and thereby prevent state and federal investigation of the circumstances surrounding Topolosky's death.
Messerlian advances three principal arguments on appeal. First, Messerlian maintains that the district court failed to instruct the jury properly on the crucial element of specific intent under section 242. Second, Messerlian argues that Count 2 of the indictment is legally insufficient because it charges appellants with a conspiracy to obstruct federal proceedings that had not commenced at the time the alleged conspiracy was formed. Third, Messerlian contends that the government's failure to disclose exculpatory expert medical opinion requires reversal of his conviction, and that the district court erred in denying his motion for a new trial based on newly discovered evidence. This evidence consisted of the testimony of Dr. Marvin Aronson, Medical Examiner for the City of Philadelphia. See infra subsection C.
Appellant Wolkowski joins in Messerlian's second and third contentions. In addition, Wolkowski makes two related arguments regarding his conspiracy conviction. First, Wolkowski argues that the evidence at trial was insufficient to support a reasonable jury verdict that he conspired to obstruct justice. Alternatively, Wolkowski maintains that the district court erred in denying his motion for a new trial because the jury's verdict is against the weight of the evidence and constitutes a miscarriage of justice. 6
Due to the nature of appellants' arguments, we turn now to a detailed account of the facts as developed at trial.
On July 30, 1982, between 10:30 and 10:45 p.m., Joseph P. Topolosky parked his Upon approaching the van, Fontanez observed the driver resting his head on his arm. Fontanez roused Topolosky and asked him if he was all right. Topolosky raised his head and responded that he was fine. See Supplemental Appendix ("SA") at 13. Velazquez smelled alcohol on Topolosky and believed him to be drunk. Id. at 232, 260. Velazquez, Fontanez and Guzman observed no cuts, bruises, bleeding or injuries of any kind on Topolosky's face. 7 Id. at 13, 232, 264-65. They therefore returned to their car to examine the damage and to wait for the police.
van--occupied by himself and his two children, then ages four and five--in the left lane of the New Jersey Turnpike. A car driven by Nelson Velazquez collided with the rear of the van when the vehicle immediately in front of the car suddenly swerved to the right. Velazquez and the passengers in his car--Luis Guzman, Abimael Fontanez and Gloria Ruiz--got out of the car and went to the van to determine whether its occupants were hurt.
Within ten to twenty minutes, New Jersey State Police Troopers Messerlian and Kenneth McClelland arrived at the scene of the accident. The troopers talked initially with the four occupants of the Velazquez vehicle and determined that no one was seriously injured. The troopers then approached the van and attempted to wake Topolosky, who appeared to be asleep. After smelling alcohol on Topolosky's breath, Messerlian and McClelland pulled him out of the van, placed him under arrest, cuffed his hands behind his back, escorted him back to the cruiser and placed him in the rear seat. As Topolosky walked to the cruiser, Velazquez, Ruiz, and Fontanez observed that he had no facial injuries. See SA at 26, 76, 236.
After placing Topolosky into the cruiser, Trooper McClelland attended to Topolosky's children while Trooper Messerlian began setting flares to alert oncoming traffic to the accident. Thereafter, Topolosky, while lying handcuffed in the back seat of the cruiser, kicked out the left rear window. See SA at 28, 238, 267. In response to this disturbance, Messerlian, according to Velazquez and Fontanez, entered the cruiser and struck Topolosky three or four times on his face and neck with a flashlight. Id. at 28-29, 250-53; see also id. at 493, 495-96 (testimony of Gary McWhorter). Ruiz testified that she observed Messerlian strike Topolosky in the head but could not identify the object used. Id. at 80. She did see a flashlight in Messerlian's hand, however, immediately before he entered the cruiser. Id. at 78-79. Guzman testified that he saw Messerlian with "an object, black and long" in his hand, and that his hand was "going up and down" while he was in the back seat of the cruiser. Id. at 269-70. Also, Velazquez, Fontanez and Guzman each testified to hearing the Topolosky children cry out "[d]on't hit my father, don't hit my father." Id. at 33, 242, 271.
Following the episode in the cruiser, Messerlian returned to interview the accident victims. During this time, Velazquez, Fontanez and Ruiz each went back to the cruiser, where they saw Topolosky lying motionless in the back seat with blood running from his mouth and face. See SA at 34, 881, 241. After completing their interviews, the troopers radioed ahead to the state police barracks, informing the senior trooper that they were returning to the station with a drunk driver. Id. at 163. When Messerlian arrived at the state police barracks, 8 Topolosky's Id. at 100 (). Due to the condition of Topolosky, the supervising At trial, the "central fact issue was whether Messerlian hit Topolosky with a flashlight and caused his death or whether Topolosky's death was caused by the car accident, or by Topolosky hitting his head on the car door or some object in the car." Defendant-Appellant Harry H. Messerlian's Brief on Appeal ("Messerlian's Brief on Appeal") at 7. In his examination report, Dr. Dalglish had written: ...
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