U.S. v. Otherson

• Decision Date: 20 February 1981
• Docket Number: 80-1203,Nos. 80-1202,s. 80-1202
• Citation: 637 F.2d 1276
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey OTHERSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bruce BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1276

637 F.2d 1276

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey OTHERSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Bruce BROWN, Defendant-Appellant.

Nos. 80-1202, 80-1203.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 17, 1980.

Decided Nov. 6, 1980.

Rehearing Denied Feb. 20, 1981.

Michael J. McCabe, San Diego, Cal., Joseph Milchen, Frank & Milchen, San Diego, Cal., for defendant-appellant.

David C. Doyle, Asst. U. S. Atty., argued, M. James Lorenz, U. S. Atty., David C. Doyle, Asst. U. S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before PREGERSON, FERGUSON and NORRIS, Circuit Judges.

PREGERSON, Circuit Judge.

Appellants Jeffrey Otherson and Bruce Brown, United States Border Patrol agents, were tried by the court on stipulated facts and convicted of violating 18 U.S.C. § 242 ¹ by depriving aliens of federal rights, and of conspiring to effect such a deprivation in violation of 18 U.S.C. §§ 371 and 242.

Otherson and Brown do not deny beating aliens who had illegally entered the United States from Mexico and who had been taken into custody by the Border Patrol near San Ysidro, California. Rather, they argue on appeal that such aliens are not "inhabitants of any State, Territory, or District" and hence are not protected by 18 U.S.C. § 242. They further claim that section 242 does not apply to actions under color of federal, as opposed to state, law.

We reject both of appellants' arguments. The convictions are affirmed.

BACKGROUND

The facts stipulated at trial reveal that on July 3, 1979, appellant Otherson was on transport duty with trainee Border Patrol agent Gino Freselli. This duty entailed picking up illegal aliens and alien smugglers apprehended by other agents and transporting the aliens in a van to a processing center.

On the morning of July 3, a Border Patrol surveillance aircraft radioed Otherson and Freselli that an alien on the ground had directed an obscene gesture at the aircraft. Otherson and Freselli later picked up three or four aliens who had been taken into custody and drove them to the area assigned to appellant Brown. There, Otherson told Brown that one of the aliens-wearing a red shirt-was the one who had made the obscene gesture to the surveillance aircraft. Brown pulled this man from the transport van and questioned him about the gesture, but received no reply. He slapped the alien four or five times across the face, then held the man's arm on the floorboard of the van and beat his hand with a nightstick.

The alien still refused to answer questions about the obscene gesture, and Brown repeatedly slapped him across the face and struck his injured hand with the nightstick. Otherson joined in, punching the alien in the stomach. Finally, the alien was put back into the transport van and driven by Otherson and Freselli to another area, where agent Dirk Dick was on duty. Otherson told Dick that they had the alien who had "flipped off" the surveillance aircraft. Dick then slapped and punched the alien before he was taken at last to patrol headquarters.

The next day (July 4, 1979), Otherson took two aliens apprehended by him in San Ysidro to an area where Brown and agent Daniel Charest already had several illegal aliens in custody. Separating one alien from the group, Brown sat him down and slapped him five or six times across the face with an open hand. Otherson kicked another alien in the leg, hit him with his nightstick, and kicked his shoes into a canyon. The aliens were taken to sector headquarters and left there for routine deportation.

There was no evidence as to the identities, origins, or destinations of any of the victims, nor as to the reasons for their presence in the United States.

There was evidence to indicate that appellants' abuse of aliens in their custody was part of a deliberate plan or policy. In late June or early July, Border Patrol Agent Ronald Gamiere, who apprehended the red-shirted alien, overheard Brown, Otherson, and a third agent talking. One of them had asked "Who's the designated hitter?" or "Are you the designated hitter?" or a similar question. On July 3, before Otherson drove the red-shirted alien to Brown's location, the two appellants had a radio conversation in which Brown replied "Affirm" to Otherson's question, "Are you Delta Henry?" (In one version of the phonetic alphabet code used by Border Patrol agents, "Delta Henry" is equivalent to "DH"-letters with no legitimate meaning in Border Patrol parlance.) Later on July 3, while Otherson was taking the red-shirted alien from Brown's location to Dick's, he explained to trainee Freselli that "we find it necessary to do things like this because the criminal justice system doesn't do anything to these assholes."

Otherson, Brown, Dick, and Charest were tried before a jury in November 1979 on charges of violating 18 U.S.C. §§ 371 and 242. The jury acquitted Charest, and acquitted Dick on two of the three counts against him, but deadlocked on all other counts, and a mistrial was declared as to those counts. At the conclusion of the prosecution's case, the defendants moved for judgment of acquittal on the grounds that the aliens allegedly victimized were not "inhabitant(s) of any State, Territory, or District" as required by 18 U.S.C. § 242, and that section 242 covers only actions under color of state, not federal, law. The district court denied the motion and later filed a written opinion explaining its ruling on the "inhabitant" issue. United States v. Otherson, 480 F.Supp. 1369 (S.D.Cal.1979).

On January 29, 1980, a two-count superseding information was filed, charging appellants Otherson and Brown with conspiring to violate 18 U.S.C. § 242 (Count One) as well as a substantive violation of section 242 (Count Two). A court trial was held that day on stipulated facts and appellants were found guilty on both counts. At this trial, appellants' earlier motion for judgment of acquittal was renewed and was again denied by the court.

I. COLOR OF LAW

Appellants claim that 18 U.S.C. § 242 applies only to actions taken under color of state law, so that they cannot be held liable under section 242 for their actions-taken under color of federal law. This claim finds no support in the language of section 242, which imposes criminal sanctions on "Whoever, under color of any law, statute, ordinance, regulation, or custom," (emphasis added) deprives any "inhabitant" of his or her civil rights.

Moreover, the Supreme Court has indicated that section 242 extends to federal officers. In Screws v. United States, 325 U.S. 91, 108, 65 S.Ct. 1031, 1038, 89 L.Ed. 1495 (1945), Justice Douglas said that in a section 242 prosecution:

The problem is not whether state law has been violated but whether an inhabitant of a State has been deprived of a federal right by one who acts under "color of any law." He who acts under "color" of law may be a federal officer or a state officer. He may act under "color" of federal law or of state law.

(See also id. at 97 n.2, 65 S.Ct. at 1033 n.2: "(F)ederal as well as state officials would run afoul of the Act since it speaks of 'any law, statute, ordinance, regulation, or custom.' ")

This circuit has in fact affirmed the conviction of a federal officer for violating section 242 (although whether the statute applied to acts under color of federal laws was not an issue raised by the defendant). Gowdy v. United States, 207 F.2d 730 (9th Cir. 1953).

The counterarguments that appellants raise carry little weight. First, they claim that section 242 was enacted to enforce the Appellants' other argument is that "under color of law" in section 242 should receive the same interpretation as the more restrictive language ("under color of any statute ... of any State or Territory") of 42 U.S.C. § 1983. Appellants seize on a remark by Representative Shellabarger, the chairman of the committee that drafted the original version of section 1983 (Act of April 20, 1871, § 1, ch. 22, 17 Stat. 13). Explaining that the new bill was modelled on section 2 of the 1866 Civil Rights Act (now section 242), the Congressman stated that that earlier act "provides a criminal proceeding in identically the same case as this one provides a civil remedy for ...." Cong. Globe, 42nd Cong., 1st Sess. App. 68 (1871).

Fourteenth Amendment, which applies only to the actions of the states, and should thus be interpreted to reach only actions under color of state law. Section 242, however, derives from section 2 of the Civil Rights Act of 1866, 14 Stat. 27, and thus could not possibly have been designed to enforce the Fourteenth Amendment-which was not ratified until 1868, and had not even been proposed to the states at the time the Civil Rights Act was passed. ²

Appellants are wrong to treat this remark as proving that section 242, like section 1983, must apply only to acts under color of state law. This ascribes entirely disproportionate importance to a single isolated remark by a single congressman, uttered five years after passage of the 1866 Act. Furthermore, when the remark was uttered, the Congressman's attention was focused on the new bill he was proposing rather than on the earlier act-indeed, his aim was precisely to minimize any differences between the two measures (since he was using the example of the earlier act to argue that his new bill was constitutional). ³

Appellants have thus advanced no persuasive reason for confining the application of section 242 to actions under color of state law, and we decline their invitation to do so.

II. "INHABITANT"

Appellants' more plausible claim is that the phrase "any inhabitant of any State, Territory, or District," as used in 18 U.S.C. § 242 to designate the persons protected by the act, does not include the aliens whom appellants concededly abused. This issue is one of first impression,...