U.S. v. Smith

• Decision Date: 24 June 2002
• Docket Number: No. 01-2605.,01-2605.
• Citation: 294 F.3d 473
• Parties: UNITED STATES of America, Appellant, v. Thomas SMITH; Brian Smith; Andrew Garth; Tyrone Payton; Paul Carpinteri, Jr.
• Court: U.S. Court of Appeals — Third Circuit

294 F.3d 473

UNITED STATES of America, Appellant, v. Thomas SMITH; Brian Smith; Andrew Garth; Tyrone Payton; Paul Carpinteri, Jr.

No. 01-2605.

United States Court of Appeals, Third Circuit.

Argued March 21, 2002.

Filed: June 24, 2002.

COPYRIGHT MATERIAL OMITTED

Shawna H. Yen, (argued), George S. Leone, Office of United States Attorney, Newark, NJ, for appellant.

Kevin H. Marino, (argued), Newark, NJ, for appellee Thomas Smith.

Robert L. Galantucci, (argued), Philip De Vencentes, Galantucci & Patuto, Hackensack, NJ, for appellee Paul Carpinteri, Jr.

Peter R. Willis, Willis & Young, Jersey City, NJ, for appellee Brian Smith.

Anthony J. Iacullo, Iacullo & Saluti, Montclair, NJ, for appellee Andrew Garth.

William D. Sayers, Yankowitz, Goldsmith & Sayers, Livingston, NJ, for appellee Tyrone Payton.

BEFORE: NYGAARD, ROTH and AMBRO, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

A jury found five Orange, New Jersey police officers — Thomas Smith, Brian Smith, Andrew Garth, Tyrone Payton, and Andrew Carpinteri — guilty of conspiring to violate Earl Faison's civil rights in violation of 18 U.S.C § 241. Thomas Smith, Brian Smith, and Andrew Garth were also convicted of substantive crimes in violation of 18 U.S.C. § 242. Following this verdict and upon the motions of the Defendants, the District Court issued a Fed.R.Crim.P. 29 post-verdict judgment of acquittal as to the conspiracy conviction of each officer. The government appeals, claiming that the District Court applied the wrong standard of review in overturning the jury verdict, misinterpreted Third Circuit conspiracy law as stated in United States v. Gibbs, 190 F.3d 188 (3d Cir.1999), and incorrectly failed to consider evidence of concerted actions of concealment among the officers after the victim's death. We will reverse and reinstate the conspiracy convictions of each officer.

I.

On April 8, 1999, Orange, New Jersey police officer Joyce Carnegie was murdered while on duty. A composite sketch of the suspect in the murder was circulated, and the entire Orange Police Department began actively looking for him. On April 11, 1999, an Orange police officer saw Earl Faison, a man who resembled the suspect, enter a taxicab. The officer approached the cab to question Faison, who immediately ran away. As Faison ran, he reached for what the officer thought was a gun. The officer gave chase and ordered Faison to stop and drop his weapon, which Faison did. Faison resisted the officer's initial attempt to handcuff him, which resulted in his being pepper-sprayed. After the pepper-spray, Faison ceased struggling and the officer successfully handcuffed him.

By this point, nine other officers (including the five Defendants/Appellees) had arrived on the scene. Upon noticing Faison's resemblance to the murder suspect, witnesses claimed that Thomas Smith (who was the senior officer on the scene) punched Faison. Then Payton and Carpinteri punched Faison and threw him in a squad car. Garth and Thomas Smith then entered the squad car and repeatedly punched Faison as he lay on the seat. An unindicted officer pulled Smith and Garth out of the car.

After this beating, Thomas Smith ordered all of the officers to return to the police department with the suspect. This order conflicted with the established protocol of bringing suspects in the Carnegie murder to the Essex County Prosecutor's Office for questioning, and was also contrary to the routine police practice of leaving an officer at the scene of an arrest to handle calls. There was also testimony at trial that it was unusual for so many officers to accompany a suspect to the police station.

As the officers, in five separate cars, approached the police station, Thomas Smith ordered that they turn off their lights. Faison was brought into the station through the south entrance — which led to a locker room — even though the north entrance was the designated prisoner drop-off area. Numerous officers testified that they had never taken a prisoner through the south entrance of the police station.

Once in the station, Faison, still handcuffed, was laid on the floor of the south stairwell. Faison was never brought to the booking room, was never fingerprinted or photographed, and was never given the opportunity to wash the pepper-spray from his face and eyes — all of which was contrary to routine police practice.

After Faison was placed in the stairwell, Payton began yelling at him, removed money from Faison's pocket, suggested that the money be given to Officer Carnegie's mother, and then pointed his gun at the handcuffed Faison's head. When an unindicted officer grabbed Payton's weapon, Brian Smith sprayed pepper-spray at close range into Faison's nose and mouth. Faison's breathing became labored and he soon died of cardiac arrest.

Immediately after paramedics removed Faison's body from the police station, the officers initiated efforts to conceal their actions. Payton and Carpinteri wrote consistent but false incident reports; Garth and Brian Smith falsely claimed in their shift reports that they were not present at the arrest; and Thomas Smith neglected to mention in his commander's summary sheet his presence at the Faison arrest. Thomas Smith also instructed one officer not to write a report of the incident because "the less people on the scene the better," (App. at 1233), and Smith instructed the arresting officer not to file a report concerning the incident.

Faison did not kill Officer Carnegie. Six days after his death, Officer Carnegie's murderer was arrested.

II.

In reviewing a Fed.R.Crim.P. 29 post-verdict motion for judgment of acquittal, a district court must "review the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence." United States v. Wolfe, 245 F.3d 257, 262 (3d Cir.2001). The court is required to "draw all reasonable inferences in favor of the jury's verdict." United States v. Anderskow, 88 F.3d 245, 251 (3d Cir.1996). Thus, a finding of insufficiency should "be confined to cases where the prosecution's failure is clear." United States v. Leon, 739 F.2d 885, 891 (3d Cir.1984). We have plenary review of a district court's grant of a post-verdict judgment of acquittal. United States v. Leggett, 162 F.3d 237, 241 (3d Cir.1998).

Title 18 of the United States Code, § 241, makes it a federal crime for "two or more persons [to] conspire to injure, oppress, threaten or intimidate any person... in the free exercise" of his constitutional rights. 18 U.S.C. § 241. In granting the officers' Rule 29 motions on this conspiracy conviction, the District Court, relying on its interpretation of United States v. Gibbs, 190 F.3d 188 (3d Cir.1999), said, "the existence of a conspiracy cannot be inferred from evidence of related facts and circumstances, without a reasonable and logical inference that the activities of the participants could not have been carried out except as the result of a preconceived scheme or common understanding." (App. at 10) (emphasis added). Applying this standard, the District Court found that the jury verdict could not stand because "there are other plausible explanations for [the officers'] conduct than a preconceived scheme or common understanding," (App. at 13), and "[t]here is no evidence to support the Gibbs requirement of a reasonable and logical inference that [the officers'] activities could not have been carried on except as the result of a preconceived agreement or understanding." (App. at 20). This misapprehends the holding in Gibbs and fails to give the appropriate deference to the jury's verdict.

In Gibbs we stated:

To prove a conspiracy, the government must establish a unity of purpose between the alleged conspirators, an intent to achieve a common goal, and an agreement to work together toward that goal. See United States v. Robinson, 167 F.3d 824, 829 (3d Cir.1999). The government may prove these elements entirely by circumstantial evidence. See McGlory, 968 F.2d at 321 (citing United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir.1986)). The existence of a conspiracy "can be inferred from evidence of related facts and circumstances from which it appears as a reasonable and logical inference, that the activities of the participants... could not have been carried on except as the result of a preconceived scheme or common understanding." Kapp, 781 F.2d at 1010 (internal quotation omitted). The government need not prove that each defendant knew all of the conspiracy's details, goals, or other participants. See United States v. Theodoropoulos, 866 F.2d 587, 593 (3d Cir.1989), overruled on other grounds by United States v. Price, 13 F.3d 711, 727 (3d Cir.1994).

Gibbs, 190 F.3d at 197. The "could not have been carried on except as a result of a preconceived scheme or common understanding" language relied upon by the District Court is preceded by the permissive "can be inferred" language in Gibbs, rendering incorrect the District Court's statement that a conspiracy "cannot be inferred" unless the existence of a preconceived scheme is the only plausible explanation of the activities in question. Reading this permissive language as mandatory led the District Court to erroneously conclude that the officers' conspiracy convictions were not supportable.

As is clear from the context in Gibbs, the "preconceived scheme" sentence is simply one way in which a conspiracy "can be inferred" (hence the use of the permissive "can"). We did not ask in Gibbs, nor in any case since Gibbs, whether there was a plausible, non-conspiratorial explanation for a defendant's actions. In Gibbs, we upheld the conspiracy conviction of the appellant Sydnor even though Sydnor claimed to have merely bought drugs from Gibbs, as opposed to having engaged in a conspiracy with Gibbs. Gibbs, 190 F.3d at 202. In that case, it was certainly plausible that Sydnor was...