U.S. v. Newman

• Decision Date: 05 June 1992
• Docket Number: No. 91-2303,91-2303
• Citation: 982 F.2d 665
• Parties: 37 Fed. R. Evid. Serv. 946 UNITED STATES of America, Appellee, v. Michael J. NEWMAN, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 665

982 F.2d 665

37 Fed. R. Evid. Serv. 946

UNITED STATES of America, Appellee, v. Michael J. NEWMAN, Defendant, Appellant.

No. 91-2303.

United States Court of Appeals First Circuit.

Heard June 5, 1992.

Decided Dec. 31, 1992.

John A. MacFadyen, Providence, RI, for appellant.

Craig N. Moore, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, RI, was on brief, for appellee.

Before CYR, Circuit Judge, RONEY, ^* Senior Circuit Judge, and PIERAS, ^** District Judge.

CYR, Circuit Judge.

Michael J. Newman appeals his conviction and sentence on one count of depriving a pretrial detainee of his civil rights under color of law in violation of 18 U.S.C. § 242. We affirm.

I BACKGROUND

Viewed in the light most favorable to the verdict, see United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir.1991), the evidence presented at trial warranted the following jury findings. On October 6, 1990, Daniel Peterson was arrested in Providence, Rhode Island, for drinking in public. A record check revealed outstanding warrants against Peterson. Appellant Michael J. Newman was the officer in charge of the cell block where Peterson was detained.

After being placed in a cell, Peterson began to yell and scream, then picked up the porcelain toilet in the cell and hurled it through the bars. Appellant Newman and another officer removed Peterson to a nearby cell. Peterson put up mild resistance and his wrists were handcuffed to the cell bars. Shortly after the officers left, Peterson resumed his yelling and screaming, which prompted appellant Newman to return to the cell. While still handcuffed to the cell bars, Peterson was beaten and kicked in the stomach and head by appellant. Peterson sustained injuries to his face, nose, eyes, and inner ear, and experienced difficulty in breathing. He remained in a local hospital for a week, where he experienced dizziness, severe headaches, and other physical pain. Extensive medical tests proved negative.

Newman was indicted, tried, and convicted for interfering with Peterson's civil rights under color of law, and sentenced to sixty months in prison and a two-year term of supervised release.

II DISCUSSION

Appellant presents four claims. First, he claims that the court committed error by excluding certain "habit" evidence proffered under Federal Rule of Evidence 406. Second, he contends that he was entitled to a new trial due to juror inattentiveness. Third, he disputes the finding that the alleged assault involved "serious bodily injury." Finally, Newman attempts for the first time to assert that the sentence imposed pursuant to U.S.S.G. §§ 2A2.2(b)(3)(B) and 2H1.4(a)(2) had the impermissible effect of "double counting" any "serious bodily injury" inflicted on Peterson.

A. Evidence Rule 406

At trial, the defense attempted to introduce Providence Police Sergeant MacDonald's testimony that he had seen between 75 and 100 prisoners handcuffed to the cell bars, but never to the first bar. MacDonald's testimony was offered to support Newman's testimony that he had handcuffed Peterson to the third bar of the cell and not to the first bar as Peterson testified. The issue became material in light of the trial testimony of Daniel Greene, a detainee in the same cell block, who claimed to have seen Peterson's cuffed hands protruding through the bars during the assault. The evidence demonstrated that Greene could have seen Peterson's hands only if they were cuffed to the first bar. The district court sustained the government's objection to the proffered testimony.

Under Rule 406, competent evidence of a person's "habit" may be admissible to prove conduct in conformity with the habit on a particular occasion. Reyes v. Missouri P.R. Co., 589 F.2d 791, 794 (5th Cir.1979); see also John H. Strong, McCormick on Evidence § 195 (4th ed. 1992); 1A John A. Wigmore, Evidence § 95 (Tillers rev. 1983). ¹ The party offering the evidence must establish the habitual nature of the alleged practice. Weil v. Seltzer, 873 F.2d 1453, 1461 (D.C.Cir.1989). As with other exclusionary rulings, the party challenging an exclusion of habit evidence under Rule 406 bears the heavy burden of demonstrating on appeal that the trial court abused its discretion. McWhorter v. Birmingham, 906 F.2d 674, 675 (11th Cir.1990); Rosenburg v. Lincoln American Life Ins. Co., 883 F.2d 1328, 1337 (7th Cir.1989); Weil, 873 F.2d at 1460; United States v. Troutman, 814 F.2d 1428, 1454 (10th Cir.1987); see also United States v. McCarthy, 961 F.2d 972, 977 (1st Cir.1992) (we review rulings on the admissibility of evidence for "abuse of discretion").

Habit evidence under Rule 406 may be probative of " 'the regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn....' " Fed.R.Evid. 406, advisory committee's note (quoting McCormick, Evidence § 195 at 826); Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519, 1524 (11th Cir.1985). Although there are no "precise standards" for determining whether a behavior pattern has matured into a habit, two factors are considered controlling as a rule: "adequacy of sampling and uniformity of response." Fed.R.Evid. 406, advisory committee's notes; McWhorter, 906 F.2d at 679; G.M. Brod & Co. v. U.S. Home Corp., 759 F.2d 1526, 1533 (11th Cir.1985); Loughan, 749 F.2d at 1529; Weil, 873 F.2d at 1460; Reyes, 589 F.2d at 795. These factors focus on whether the behavior at issue "occurred with sufficient regularity making it more probable than not that it would be carried out in every instance or in most instances." Weil, 873 F.2d at 1460. The requisite regularity is tested by the " 'ratio of reaction to situations.' " Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 512 (4th Cir.1977) (quoting Lewan, Rationale of Habit Evidence, 16 Syracuse L.Rev. 39, 51 (1964)), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 768 (1978); Weil, 873 F.2d at 1461; Simplex, Inc. v. Diversified Energy Systems, Inc., 847 F.2d 1290, 1294 (7th Cir.1988). It is essential, therefore, that the regularity of the conduct alleged to be habitual rest on an analysis of instances " 'numerous enough to [support] an inference of systematic conduct' and to establish 'one's regular response to a repeated specific situation.' " Wilson, 561 F.2d at 511 (quoting Fed.R.Evid. 406, advisory committee's notes).

Appellant's proffer failed to demonstrate the admissibility of the MacDonald testimony under Rule 406. Appellant provided no foundation for assessing the adequacy of the sampling to which MacDonald would testify. There was no evidence even approximating the number of times prisoners were handcuffed to the cell bars. ² Absent some evidence of the number of instances in which the handcuffing practice took place, we cannot conclude that the district court abused its discretion. An officer's observation of 75 to 100 such instances did not require the conclusion that the putative practice was followed with the necessary regularity. See Brod, 759 F.2d at 1533 (testimony concerning specific instances within experience of witness, when considered in light of thousands of unobserved similar instances, "falls far short of the adequacy of sampling and uniformity of response which are the controlling considerations governing admissibility").

Other considerations reinforce the conclusion that the district court did not abuse its discretion. First, Sergeant MacDonald testified that there was no "rule or practice that's followed" about where to handcuff prisoners but that "[t]he officers involved ... at the time would decide where to handcuff them and how to do it." Second, we are aware of no case, and appellant cites none, in which the routine practice of an organization, without more, has been considered probative of the conduct of a particular individual within the organization. See United States v. Angelilli, 660 F.2d 23, 41 (2d Cir.1981), cert. denied, 455 U.S. 910, 102 S.Ct. 1258, 71 L.Ed.2d 449, cert. denied, 455 U.S. 945, 102 S.Ct. 1442, 71 L.Ed.2d 657 (1982) (questioning whether it is proper on the basis of the "ambiguous structure of Rule 406" to infer individual behavior based on evidence of routine practice of the organization). The exclusionary ruling under Evidence Rule 406 did not constitute error.

B. Juror Inattentiveness

Appellant contends that the district court (1) failed to conduct adequate inquiry into allegations that one or more jurors slept during portions of the trial, and (2) committed reversible error by denying a new trial based on the alleged juror inattentiveness.

At one point during trial, on July 10, the presiding judge observed a juror who appeared as though he may have been asleep. ³ Immediately, the judge advised all counsel and offered to replace the juror with an alternate. Defense counsel declined the offer. The judge promptly and firmly cautioned all members of the jury on the importance of devoting full attention to the evidence. After trial, three putative eyewitnesses submitted letters recounting their observations of one or more jurors who appeared to be sleeping during parts of the trial. ⁴

These letters formed the basis for appellant's motion for new trial. The district court stated that it had "noted the incidents in question and promptly brought it to the attention of counsel in a[n] [unrecorded] bench conference," but that defense counsel rejected the court's offer to replace the juror. ⁵ The court noted further that there was no firm evidence that the juror had been asleep. The court offered to submit to an interrogation on the record by defense counsel as to its recollection of the incidents, which was confirmed by the prosecutor. The proposal was not endorsed by defense counsel. Defense counsel requested neither further investigation, nor an evidentiary hearing, into the allegations contained in the letters submitted...