U.S. v. Zabawa, 04–CR–80844.
| Decision Date | 23 November 2010 |
| Docket Number | No. 04–CR–80844.,04–CR–80844. |
| Parties | UNITED STATES of America, Plaintiff,v.Phillip ZABAWA, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
OPINION TEXT STARTS HERE
FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING COUNT ONE OF INDICTMENT CHARGING DEFENDANT PHILLIP ZABAWA WITH ASSAULTING, RESISTING AND IMPEDING A FEDERAL OFFICER
Defendant Phillip Zabawa is charged in an October 13, 2004 Indictment with a single count of assaulting, resisting, opposing, intimidating, impeding and interfering with a federal officer, in violation of 18 U.S.C. § 111(a)(1) and (b). Defendant has waived his right to a trial by jury, and instead requested a trial by the Court on all issues of fact and law arising from the charge against him.
Accordingly, on August 30, August 31, and September 1, 2010, the Court conducted a bench trial on the charged offense. During the course of this proceeding, the Court heard the testimony of five witnesses called by the Government: (i) U.S. Deputy Marshal Matthew Batcheller, (ii) Detention Enforcement Officer Gregory Shelton, (iii) U.S. Deputy Marshal Denis Donovan, (iv) U.S. Deputy Marshal David Murphy, and (v) Supervising U.S. Deputy Marshal Mark Jankowski. In addition, the Government introduced a number of exhibits for the Court's consideration. The defense elected not to call any witnesses. After the close of proofs, Defendant moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29. The Court ordered supplemental briefing on the Rule 29 motion and took the matter under advisement.
Having reviewed and considered the testimony and exhibits offered during the three-day bench trial, the oral arguments of counsel, and the parties' post-trial briefs,1 and having also reviewed the applicable statutes and case law, the Court is now prepared to decide the issues of fact and law raised during the trial and in Defendant's Rule 29 motion, and to resolve the overarching question presented: namely, whether the Government has proven Defendant guilty of the charged offense beyond a reasonable doubt. This Opinion and Order sets forth the Court's findings of fact and conclusions of law on these matters. To the extent that any findings of fact constitute conclusions of law, they are adopted as such. To the extent that any conclusions of law constitute findings of fact, they are so adopted.
On December 2, 2003 at approximately 7:45 a.m., Defendant Phillip Zabawa was transported from the Wayne County Jail to the U.S. Marshal's lock-up facility in the Theodore Levin U.S. Courthouse for a sentencing hearing scheduled on that day before United States District Judge Avern Cohn. According to Detention Enforcement Officer (“DEO”) Gregory Shelton, when Zabawa arrived at the lock-up, he seemed to be a little “disgruntled and upset.” [8/30/10 Tr. p. 70.] After being searched, Zabawa was sent down the cell block hallway to his cell 2 and directed by DEO Shelton to close the cell door behind him. Zabawa refused to comply with that directive, complaining that “he'd been locked up for 15 years and the last thing he was going to do was close his own cell door.” [8/30/10 Tr., pp. 70–72.]
Because it was apparent to DEO Shelton that Zabawa was upset, he had Zabawa come back down the hall and placed him in Interview Room 14 so the detention officers could ascertain out what was going on with him. Id. at 72. As was explained during the trial, it is standard practice in the lock-up to separate noncompliant prisoners from the other prisoners. [ See 8/30/10 Tr., testimony of David Murphy, pp. 130–31.] Hence, Zabawa was removed from the cell block and placed in Interview Room 14.
Interview Room 14 is a small room, only 5 feet by 9 feet in size. [8/30/10 Tr., p. 133]. Shelton called DEO David Murphy, the most senior Detention Enforcement Officer on duty that day,3 to advise him that there was a problem with a non-compliant prisoner. Murphy, at the time, was just finishing up his morning workout in the Marshal's gym. Id. at 125.
Murphy contacted his supervisor, Supervising U.S. Deputy Marshal Mark Jankowski, to apprise him of the situation, and then went to the lock-up facility himself. After a three to four-minute briefing by DEOs Marcus Williams and Gregory Shelton, Murphy went to the Interview Room to try to calm Zabawa down.
Murphy testified that as he approached Interview Room 14, he observed Zabawa seated on a stool with his arms on his knees, looking at the floor. [8/30/10 Tr. pp. 129–132.] According to Murphy, Zabawa appeared to be agitated. Id. at 131. Murphy testified that he stood in the doorway of the Interview Room and calmly asked Zabawa what the problem was. Murphy testified that as soon as he asked this, Zabawa exploded. Id. at 134. Zabawa told Murphy that he was tired of “being moved all over the place.” Id. Murphy tried to explain to Zabawa that he had been brought to the U.S. Courthouse lock-up because he had a court appearance that day; that the detention officers had nothing to do with it. Id. at 134–35. Zabawa responded, id., at 135, and then proceeded to complain to Murphy how he “couldn't do this and that.” Id.
At the end of his tirade, Zabawa told Murphy that if he ever got a gun, he would be sure to use it. Id. at 136. Murphy testified that he responded, “You're not going to get one here,” to which Zabawa, looking directly at Murphy, growled, “Don't bet on it.” Id. at 139–41.
Murphy testified that when Zabawa started talking about guns, he feared Zabawa would try to disarm one of the deputies, so he decided that instead of continuing to try to reason with Zabawa, he had to exert his authority. He told Zabawa if he continued to give the deputies and DEOs a problem, they would have to put him in full restraints and take him back to Wayne County Jail. Id. at 141. Intending to handcuff Zabawa, Murphy ordered Zabawa to stand up and turn around. Id. Zabawa refused to comply. Id. Murphy repeated his directive, telling Zabawa, Id. at 143. Zabawa told Murphy, “If you were [here] alone, you'd be scared.” Id. at 145. Murphy asked Zabawa whether he was threatening him, to which Zabawa responded, “If I was in your face I'd be threatening you.” Id.
Zabawa had remained seated during this exchange but began tapping his feet quickly and his eyes were darting around. Id. at 148. Murphy testified he intended to get Zabawa on his feet and turn him around to get handcuffs on him. Because the space was so small, he told DEO Shelton, who was observing from an area to the left of the doorway just outside the room to step back. Id. at 146. As soon as Murphy told Shelton to “step back,” Zabawa “lunged” at him, id., i.e., he came up from a seated position with a closed fist coming towards Murphy. Id. at 147–149.
Murphy moved to block Zabawa's arm movement with a clinch move which prevented Zabawa from forcibly driving on through the doorway and out of the Interview Room. Id. at 149, 159. Blows were exchanged and a violent struggle ensued. Id. at 149–50, 165. Shelton testified that he observed Zabawa and Murphy “exchanging punches.” Id. at 79–80. A duress alarm was sounded in the U.S. Marshal's offices on the third floor. Deputy Marshal Denis Donovan was the first to respond to the duress alarm. Donovan testified that when he arrived on the scene, he saw Murphy struggling with Zabawa to get him under control and observed Zabawa punching Murphy with closed fists. 8/30/10 Tr., pp. 108–09. Donovan then grabbed Zabawa and attempted to push him to the ground. Id. at 106.
Supervising Deputy Marshal Jankowski arrived a few moments behind USDM Donovan. He observed Donovan, Murphy and DEO Williams struggling with Zabawa who continued to fight and struggle with the officers until he was finally handcuffed. 8/30/10 Tr., p. 110; 8/31/10 Tr., p. 196.
Jankowski contacted Deputy Marshal Batcheller, and Batcheller arrived in the lock-up after Zabawa had been restrained. 8/30/10 Tr., p. 38. Batcheller testified that he observed DEO Murphy “bleeding profusely from the head.” Id. at 41–44. DEO Shelton described Murphy's cut as “a bleeding cut, pretty good size gash above one of his eyes.” Id. at 83. Deputy Marshals Donovan and Jankowski testified that there was blood on the floor and on the wall of the door to the interview room, and there was blood all down Murphy's shirt. 8/30/10 Tr., p. 114; 8/31/10 Tr., p. 25.
Deputy Marshal Batcheller escorted Murphy first to the nurse's station on the tenth floor of the courthouse, and then, because the cut above Murphy's eye was deep and required stitches, he escorted Murphy to the emergency room at Detroit Receiving Hospital. 8/30/10 Tr., pp. 41–44. In addition to the cut above his eye, as a result of the struggle with Zabawa, Murphy suffered a bruised knee and, scratches on his neck, and cuts and scrapes on his hands. 9/1/10 Tr., pp. 19–20; 24.
Due to the fast moving nature of the struggle, however, Murphy could not recall with specificity how he got the cut above his eye. He testified that he intercepted Zabawa's blows but does not know if he got the cut from Zabawa's punches or if he got it from head-butting Zabawa. See 8/30/10 Tr. pp. 158–171. When questioned about head-butting Zabawa, Murphy testified that in the fast-moving scuffle, he threw an elbow, threw a knee, and head-butted Zabawa, explaining, “Whenever I had an opening, I used that opening to do what I could to put him on the floor.” Id. at 161. Murphy further testified that he had no injuries prior to entering the Interview Room and that after Zabawa lunged at him, he and Zabawa never broke contact until Zabawa was restrained and handcuffed. Id. at 26.
On October 13, 2010, Zabawa was indicted on one count of assaulting, resisting, opposing, intimidating, impeding and...
To continue reading
Request your trial