United States v. Moyer

• Decision Date: 29 February 2012
• Docket Number: Nos. 11–2497,11–2559.,s. 11–2497
• Citation: 674 F.3d 192
• Parties: UNITED STATES of America v. William MOYER, Appellant.United States of America v. Matthew Nestor, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

674 F.3d 192

UNITED STATES of America

v.William MOYER, Appellant.United States of America

v.Matthew Nestor, Appellant.

Nos. 11–2497

11–2559.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit

LAR 34.1(a) Jan. 23, 2012.

Filed: Feb. 29, 2012.

Enid W. Harris, Esq., Kingston, PA, for Appellant William Moyer.

James J. West, Esq., James J. West LLC, Harrisburg, PA, for Appellant Matthew Nestor.

Thomas E. Perez, Jessica Dunsay Silver, Angela M. Miller, United States Department of Justice, Civil Rights Division, Appellate Section, Washington, D.C., for Appellee.Before: FISHER, GREENAWAY, JR. and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Appellants Matthew Nestor and William Moyer appeal from final judgments entered by the United States District Court for the Middle District of Pennsylvania after a jury found Nestor guilty on Count Two of the indictment and Moyer guilty on Count Five. Count Two of the indictment charged Nestor with knowingly falsifying police reports with the intent to impede, obstruct, or influence the investigation into a matter within the jurisdiction of the Federal Bureau of Investigation (“FBI”), in violation of 18 U.S.C. § 1519. Count Five charged Moyer with knowingly making a false material statement in a matter within the FBI's jurisdiction, in violation of 18 U.S.C. § 1001.

Nestor now challenges both the indictment and his conviction. First, he contends that the District Court: (1) exceeded its discretion by denying, in relevant part, his motion for a bill of particulars; (2) erred by refusing to dismiss Count Two because it was duplicitous; and (3) exceeded its discretion by refusing to enforce the bill of particulars it did order. Nestor also contends (4) that the government presented insufficient evidence to support his conviction; and (5) that 18 U.S.C. § 1519 is unconstitutionally vague. Moyer argues that the evidence was insufficient to support his conviction under § 1001. For the reasons that follow, we will affirm.

I.

A.

In the late evening of July 12, 2008, in Shenandoah, Pennsylvania, teenagers Brandon Piekarsky, Derrick Donchak, Brian Scully, Colin Walsh, Ben Lawson, and Josh Redmond encountered Luis Ramirez, a Hispanic man, in a local park. After some of the teenagers shouted racially derogatory comments at Ramirez and told him to “go back to Mexico,” a violent fight ensued. App. 00765. Walsh knocked Ramirez down and Piekarsky kicked their victim in the head while he was on the ground. The fight ended with Ramirez lying unconscious in the street.

Arielle Garcia witnessed part of the incident. She recognized the teenagers as students from Shenandoah High School and heard Scully shouting “racial” things to Ramirez about his ancestry. App. 00767. She saw Scully and Ramirez “interlock” and later saw “some[one]” kick Ramirez in the head “really hard” after he fell. App. 00675. After the teenagers fled the scene toward the park, Garcia phoned 911.

At the same time, Francis Ney saw approximately four “younger individuals” run in front of his moving car. App. 00977. He heard a female shouting and saw Ramirez lying in the street. Ney called 911 and reported seeing the teenagers in the park. Ney tried to revive Ramirez but eventually ran to the park with a man referred to as “Mexican Jesse,” who confronted Piekarsky, Scully, Donchak, Walsh, Lawson and Redmond. According to some, “Mexican Jesse” brandished a gun.¹ Officer Robert Senape of the West Mahanoy Police Department arrived at the scene and requested an ambulance. Lieutenant William Moyer and Officer Jason Hayes of the Shenandoah Police Department—both defendants below—arrived shortly thereafter. In the meantime, the police dispatch system reported a man chasing people in the park, so Lieutenant Moyer and Officer Hayes left to respond.

Moments later, Ney again called 911 to report that the teenagers who had beaten Ramirez were near the baseball field and urged the dispatcher to send police to the area. Ney was speaking with the dispatcher when Lieutenant Moyer and Officer Hayes arrived. While still on the phone with the 911 dispatcher, Ney told the officers that approximately five teenagers were running through the field on the back side of the school. When one of the officers asked who the teenagers were, Ney responded that they were a bunch of 16– to 17–year–old kids. Ney told the officers that he saw the teenagers who were beating Ramirez and that they fled when he stopped them to ask what they were doing. Ney told the police that Donchak remained in the park while the others ran away. Throughout this conversation—which was recorded on the 911 call—the dispatcher repeatedly asked if Ney was speaking with the police. After the dispatcher's third inquiry, Ney responded in the affirmative and the dispatcher terminated the call.

Ney and Donchak were placed in the police cruiser, and Lieutenant Moyer drove to Donchak's home, where the teenagers had gathered. After speaking with them, the officers looked “shocked” and “confused,” and released the pair from the police car. App. 00989. But moments later, when Lieutenant Moyer and Officer Hayes saw Ney on their way back to the scene, they arrested him based on Piekarsky's assertion that Ney had a gun. Officer Charles Kovalewski of the Mahanoy City Police Department arrived while Lieutenant Moyer was handcuffing Ney, who kept saying “it wasn't him.” App. 00957. Lieutenant Moyer told Ney to “shut up” and placed him in the rear seat of the police car. App. 00958. Officer Kovalewski also got into the car. At no point did Kovalewski hear Ney say anything about a man with a gun. The officers then drove back to the scene of the assault. Once there, Officer Hayes—who was romantically involved with Piekarsky's mother, Tammy—took Piekarsky toward the park and spoke with him privately.

Lieutenant Moyer telephoned Matthew Nestor, the Chief of Police, who was off-duty at a bar, and briefed him on the incident. Chief Nestor then called Piekarsky's mother.² Other officers remained at the park and eventually found a BB gun. At the police station, Garcia and Ney provided statements, during which Garcia never identified who kicked Ramirez in the head. Officer Hayes interviewed Ney about the gun but did not ask what Ney knew about the assault.

The next day, July 13, 2008, detectives from the District Attorney's office arrived at the station. They, along with Lieutenant Moyer, interviewed Scully, who relayed “the cover story [the teenagers] made up” the night before. App. 00774. Later that day, District Attorney (“D.A.”) James Goodman was briefed about the assault, and he instructed his detectives to continue to assist the police with their investigation.

Ramirez died on July 14. The cause of death was ruled a homicide. Phone records indicate that on the afternoon of July 15—immediately after learning the cause of death—Chief Nestor placed six telephone calls to Tammy Piekarsky.

By July 21, D.A. Goodman decided to take over the investigation because (1) the romantic relationship between Tammy Piekarsky and Officer Hayes created a conflict of interest, and (2) some of the suspects were “trying to protect the kicker.” App. 01365. On July 23, D.A. Goodman contacted the Pennsylvania State Police and the State Attorney General's Office about a possible cover-up involving the Shenandoah Police Department.³ Two days later, on July 25, the D.A.'s office filed criminal complaints against the teenagers.

On July 28, the D.A.'s office contacted Chief Nestor because D.A. Goodman had not yet received any investigative reports from Officer Hayes. In fact, the only reports D.A. Goodman received from the police department were (1) a July 20 report from Chief Nestor regarding his investigative steps in the Ramirez assault, and (2) a one-page report from Lieutenant Moyer about “an individual who brought a BB gun to the scene after the assault” on Ramirez, but nothing regarding the assault itself. App. 01367. Chief Nestor's July 20 report did not: (1) identify the teenaged suspects; (2) include any of his contacts with Ms. Piekarsky; or (3) include his conversation with Borough Manager Palubinsky about the conflict of interest.

On August 1, D.A. Goodman sent a formal memorandum to Chief Nestor, Lieutenant Moyer and Officer Hayes, requesting additional information from Nestor and reports from Moyer and Hayes on their involvement in the investigation. They complied with this request. Lieutenant Moyer's report indicated that eyewitness Garcia told him at the scene that Scully had kicked Ramirez in the head. Officer Hayes's report—which Chief Nestor reviewed and incorporated into his August 1 report—also indicated that Garcia identified Scully as the kicker. This was the first time the D.A.'s office heard from the Shenandoah Police Department that someone had identified Scully as the kicker, even though Lieutenant Moyer briefed the D.A.'s office about the incident on the morning of July 13. In his August 1 report, Nestor stated that he was the one who: (1) contacted the D.A.'s office about a possible conflict of interest, and (2) requested that the D.A.'s office take over the case.⁴

The FBI became involved by the end of July 2008, after media reports revealed that the assault may have been racially motivated. As part of the investigation, FBI Special Agent Adam Aichele interviewed Lieutenant Moyer on June 2, 2009. At that time, Lieutenant Moyer stated that when he initially encountered Ney in the park on the night of the assault, Ney said someone had a gun, and, upon hearing this information, Moyer instructed Ney to get into the police car. Lieutenant Moyer also stated that Ney never identified Ramirez's assailants. When Special Agent Aichele interviewed Lieutenant Moyer again on June 11, 2009, Moyer reiterated the same sequence of events. Special Agent Aichele questioned Moyer's account and played the 911 recording for Moyer, in which Ney does not mention a...