RONALD BRADLEY HATCHER, ET AL., PETITIONERS V. UNITED STATES OF AMERICA No. 90-5947 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-45) is reported at 905 F.2d 784. JURISDICTION The judgment of the court of appeals was entered on June 12, 1990. The petition for rehearing was denied on July 9, 1990. Pet. App. 46-48. The petition for a writ of certiorari was filed on October 9, 1990. /1/ The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court's instructions to the jury fairly stated the standard applicable to law enforcement officials charged with willfully violating the due process rights of a pretrial detainee by using excessive force in violation of 18 U.S.C. 242. 2. Whether mere words spoken by a pretrial detainee justify the use of force by a law enforcement officer. 3. Whether an indictment charging obstruction of justice in violation of 18 U.S.C. 1512(b) must recite each element of the substantive offense that the defendant allegedly attempted to conceal. STATEMENT Following a jury trial in the United States District Court for the Southern District of West Virginia, petitioners were convicted of depriving a pretrial detainee of his civil rights by subjecting him to excessive force, in violation of 18 U.S.C. 242 (Count I), and obstruction of justice, in violation of 18 U.S.C. 1512(b)(3) (Count IV). Petitioner Keaton was also convicted of witness tampering, in violation of 18 U.S.C. 1512(b)(3) (Count III). Keaton was sentenced to two years' imprisonment to be followed by four years' probation. Petitioner Hatcher was sentenced to imprisonment for one year, to be followed by three years' probation. Petitioner Sears was sentenced to imprisonment for one year, to be followed by two years' probation. The court of appeals affirmed. /2/ Pet App. 1-45. 1. Petitioner Keaton was employed as Chief of Police of Hinton, West Virginia. His co-defendant Thomas Cobb was a police officer for the City. Petitioner Hatcher was Chief Deputy Sheriff for Summers County, West Virginia; petitioner Sears was a Deputy Sheriff. Pet. App. 5. On April 24, 1987, Keaton, accompanied by Sears and Hatcher, arrested Kenneth Pack at a bar in Hinton. The officers handcuffed Pack and took him to a holding area at City Hall known as the "booking room." Id. at 5-6. Keaton, Cobb, Sears, and Hatcher were present in the booking room. Ibid. Pack and the officers exchanged insults. Keaton then hit Pack in the head with a slapjack. Pet. App. 6. Pack fell to the floor. Pack remained on the floor in handcuffs for almost two hours while petitioners beat and verbally abused him. Ibid. Pack did not attempt to strike any of the officers at any time. /3/ Ibid. Just before midnight, Keaton and Hatcher took Pack to the hospital. Pet. App. 7. Pack was treated for injuries including "a hematoma on the left frontal skull, swelling of the area surrounding the left eye, and a lip so severely lacerated that it required reconstructive surgery." Ibid. While Pack was still in the booking room, each petitioner executed an affidavit falsely swearing that Pack had physically assaulted the officers. Pet. App. 6-7. In addition, petitioner Keaton intimidated John Plumley, a part-time police dispatcher who had witnessed the beating, and induced him to execute a similar affidavit. Id. at 7. A city judge later issued arrest warrants, based on the false affidavits, charging Pack with assault. Ibid. Pack was never tried on the assault charges. Id. at 7 n.2. 2. A federal grand jury indicted petitioners and Cobb in August 1988. Pet. App. 60-71. Count I of the indictment charged all four defendants with violating 18 U.S.C. 242 and 18 U.S.C. 2 by striking, kicking, beating, assaulting, and threatening Pack while he was handcuffed and in their custody, thereby willfully depriving Pack of his "right secured and protected by the Constitution and laws of the United States of America not to be deprived of liberty without due process of law, which includes the right not to be subjected to unnecessary and excessive force." Pet. App. 62. Count III charged Keaton, Sears, and Cobb with obstructing justice, in violation of 18 U.S.C. 1512(b)(3) and 18 U.S.C. 2, by knowingly using intimidation to induce Plumley to execute a false affidavit. Id. at 68-69. Count IV charged each of the defendants with obstructing justice, in violation of 18 U.S.C. 1512(b)(3) and 18 U.S.C. 2, by presenting criminal warrants falsely charging Pack with having physically assaulted them to a city judge. Id. at 69-71. /4/ 3. At trial, the defendants proposed the following jury instruction on Count I: (B)efore you may return a verdict of guilty on Count one as to any one of the four defendants, you must first be convinced beyond a reasonable doubt that that particular defendant used an amount of force that shocks the conscience and that he applied that force maliciously and sadistically for the purpose of causing harm. In other words, you must determine whether the force applied caused injury so severe, was so disproportionate to the need presented and was so inspired by malice and sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal or inhumane abuse of official power literally shocking to the conscience. C.A. App. 144. The district court declined to give this instruction. Instead, it instructed the jury that, in order to convict a defendant on Count I, it must find, among other things, that the conduct of that defendant deprived Kenneth Pack of his constitutional right not to be subjected to unreasonable and excessive force; * * * * In considering whether or not a defendant deprived Kenneth Pack of his constitutional right not to be subjected to unreasonable and excessive force, you should determine whether the force used by that defendant was necessary in the first place or was greater than the force that would appear reasonably necessary to an ordinary, reasonable, and prudent person. A law enforcement officer is justified in the use of any force which he reasonably believes to be necessary to effect an arrest or hold someone in custody and of any force which he reasonably believes to be necessary to defend himself or another from bodily harm. Provocation by mere insulting or threatening words will not excuse a physical assault by a law enforcement officer. Mere words, without more, do not constitute provocation or aggression on the part of the person saying those words. No law enforcement officer is entitled to use force against someone based on that person's verbal statements alone. In determining whether the force used in this case was excessive or unwarranted, you should consider such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. The district court further instructed the jury that (i)n order to find that the Government has proven (that the defendant willfully and knowingly intended to subject Kenneth Pack to the deprivation of his constitutionally protected right), they must show that a defendant had the specific intent to deprive Kenneth Pack of his right not to be subjected to unreasonable and excessive force. If you find that a defendant knew what he was doing and that he intended to do what he was doing, and if you find that he did violate a constitutional right, then you may conclude that the defendant acted with the specific intent to deprive the victim of that constitutional right. Pet. App. 16-18. The jury found all four defendants guilty on Counts I and IV, and found petitioner Keaton guilty on Count III Pet. App. 4. 4. The court of appeals affirmed petitioners' convictions. Pet. App. 4. The court of appeals concluded that the district court's instruction to the jury on Count I "fairly stated the controlling law" applicable to defendants charged with violating the due process rights of a pretrial detainee by use of excessive force. Pet. App. 28. The court, in accordance with this Court's direction in Graham v. Connor, 109 S. Ct. 1865 (1989), first "identif(ied) the specific constitutional right allegedly infringed by the challenged application of force." Pet. App. 19-20 (quoting 109 S. Ct. at 1870). As a pretrial detainee, the court of appeals noted, Pack was entitled under the Due Process Clause of the Fourteenth Amendment "to be free from 'the use of excessive force that amounts to punishment.'" Pet. App. 21 (quoting 109 S. Ct. at 1871 n.10). An intent to punish "may be inferred when the force is 'not reasonably related to a legitimate non-punitive governmental objective.'" Pet. App. 23 (quoting Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988)). While the district court's instruction did not use the words "intent to punish" it "adequately conveyed" to the jury that the necessary intent "could be inferred from the circumstances of the assault." Pet. App. 23-24. In support of this conclusion, the court of appeals pointed to thee segment of the instruction that required the jury to consider the relationship between the need for the force and the amount of force applied, and "whether the force was applied in good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Id. at 25. This instruction was "accurate and effective * * * for determining what uses of force are punitive in the pretrial detainee context," particularly when applied in conjunction with the instruction requiring the jury to find "that the defendants 'willfully and knowingly' acted with a 'specific intent to deprive' Pack of his liberty interest." Id. at 25-26. The court of appeals also upheld the portion of the Count I instruction informing the jury that mere words by a pretrial detainee do not justify use of force by an officer. Pet. App. 27-28. Because the Due Process Clause protects pretrial detainees from punishment, the court reasoned, they may not be subjected to force as a result of their statements. Ibid. Finally, the court of appeals held that Counts III and IV, which charged petitioners with obstructing justice, were sufficient even though they did not recite every element of the underlying Section 242 offense. Pet. App. 28-36. The court noted that "(t)he gist of the crimes charged in Counts III and IV was obstruction of justice, not the underlying civil rights violation, and all of the elements of that crime were clearly set forth." Id. at 36. Thus, the indictment was "more than adequate to inform (the defendants) of the charges they would face at trial." Ibid. ARGUMENT The decision of the court of appeals is correct and does not conflict with any decision of this Court or any other court of appeals. Accordingly, further review is not warranted. 1. The court of appeals correctly concluded that the district court's instruction on Count I "fairly stated the controlling law." Pet. App. 28. In Graham v. Connor, 109 S.Ct. 1865, 1870 (1989), this Court held that the first step in addressing a claim of excessive force is to "identify() the specific constitutional right allegedly infringed by the challenged application of force." Contrary to petitioners' contention (Pet. 22), the court of appeals complied with this directive. It correctly determined that Pack, a pretrial detainee, had a right "secured by the Due Process Clause of the Fourteenth Amendment * * * to be free from 'the use of excessive force that amounts to punishment.'" Pet. App. 21 (quoting Graham v. Connor, 109 S. Ct. at 1871 n.10 (1989) (citation omitted)). Petitioners contend (Pet. 15-24) that the jury instruction should not have contained both subjective and objective elements. They assert that the jury's inquiry should have been purely subjective, and that "an objective analysis is of no benefit in a determination of an actor's subjective intent" in a due process case. Id. at 21. But this Court has never held that a due process inquiry is purely subjective. On the contrary, this Court has said that (a) court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. * * * Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on "whether an alternative purpose to which (the restriction) may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned (to it)." Bell v. Wolfish, 441 U.S. 520, 538 (1979) (citations omitted). The jury instruction in this case conformed to this standard. The instruction (1) directed the jury to determine whether the force used by petitioners was "necessary in the first place or was greater than the force that would appear reasonably necessary to an ordinary, reasonable, and prudent person;" (2) informed the jury that petitioners were "justified in the use of any force which (they) reasonably believe(d) to be necessary;" and (3) instructed the jury to consider "such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Pet. App. 16-17. This instruction properly focused the jury's inquiry on whether there was "an alternative purpose" for the use of force and whether the force used "appear(ed) excessive in relation to" that purpose. Bell, 441 U.S. at 538. To be sure, the district court's instruction did not expressly direct the jury to determine whether the defendants had acted with an intent to punish. But the defendants did not request such an instruction. Indeed, their proposed instruction did not mention the word "punishment." See page 4, supra. Consequently, petitioners' convictions were subject to reversal only if the omission of the word "punishment" from the instructions was plain error. See Fed. R. Crim. P. 52(b). This is not the "rare case" in which such "extravagant protection" is warranted. Henderson v. Kibbe, 431 U.S. 145, 154 & n.12 (1977) (quoting Namet v. United States, 373 U.S. 179, 190 (1963)). Where, as here, the jury was directed to consider the factors relevant to determining whether petitioners' actions were punitive, the omission of the word "punishment" was not "obviously prejudicial," 431 U.S. at 154 n.12, and "the probability that it substantially affected the jury deliberations seems remote," id. at 155. Petitioners' complaint (Pet. 17-18) that the instruction required the jury to apply a "reasonable man" standard is also without merit. This contention is based on a single clause in a multi-paragraph segment of the instructions directing the jury to determine whether the force used "would appear reasonably necessary to an ordinary, reasonable, and prudent person." Pet. App. 16. In the very next paragraph, the district court instructed the jury that "(a) law enforcement officer is justified in the use of any force which he reasonably believes to be necessary to effect an arrest or hold someone in custody and of any force which he reasonably believes to be necessary to defend himself or another from bodily harm." Ibid. (emphasis added). A single portion of an instruction "may not be judged in artificial isolation." Cupp v. Naughton, 414 U.S. 141, 147 (1973). It does "not stand alone, but (is) to be taken in connection with what preceded it and alsoo with what followed." Boyd v. United States, 271 U.S. 104, 107 (1926); see also Henderson v. Kibbe, 431 U.S. at 152-153 n.10. Here, the instructions taken as a whole clearly directed the jury's attention to the force that an officer could reasonably believe necessary under the circumstances. 2. Petitioners' contention (Pet. 24-28) that law enforcement officers are justified in using force on the basis of mere words uttered by a pretrial detainee is without merit. The only authority they cite in support of their position, Agee v. Hickman, 490 F.2d 210, 212 (8th Cir.), cert. denied, 417 U.S. 972 (1974), in fact supports the opposite conclusion. Agee involved an arrestee who made not only a threatening statement but also threatening gestures towards the arresting officers, as the omitted portion of the sentence only partially quoted by the petitioners indicates: (W)hen a man under arrest doubles his fists and "squares away," there is no legal or practical reason that the officer has to give him the first "lick" before using reasonable force to overcome the show of force. 490 F.2d at 212 (emphasis added). Indeed, the Agee court made it clear that mere words, unaccompanied by any threat of actual physical danger, do not justify the use of force by law enforcement personnel: This Court does not mean to condone, by this opinion, the use of any force by officers simply because a suspect is argumentative, contentious or vituperative. It is the policeman's lot to take such verbal abuse without retaliation by force. Force can only be used to overcome physical resistance or threatened force, as in this case. Ibid. Here, of course, Pack posed no physical threat because his hands were handcuffed behind his back. Petitioners' suggestion (Pet. 26-27) that the instruction here conflicts with federal statutes criminalizing certain threatening verbal statements is similarly groundless. Such threats may justify arrest, detention, and punishment pursuant to due process of law; they do not justify the use of force by the arresting or detaining officer. 3. Finally, the court of appeals' conclusion (Pet. App. 37) that "Counts III and IV of the indictment adequately charged a violation of Section 1512(b)(3)" is correct and does not merit review. /5/ Petitioners contend (Pet. 31-33) that review of this issue should be granted so that this Court can resolve an asserted conflict in the circuits as to whether an indictment for conspiracy must recite each essential element of the underlying substantive violation. But this case presents a different issue and therefore is not an appropriate vehicle for resolving the conspiracy question. Counts III and IV charged violations of 18 U.S.C. 1512(b), which criminalizes the obstruction of an investigation of "the commission or possible commission of a federal offense." As the language of the statute makes plain, a charge of obstruction of justice may stand even if there is no allegation of the actual commission of an underlying federal offense; only the "possible commission" of such an offense is required. The court of appeals correctly concluded that the phrasing of Counts III and IV did not make it necessary to restate each of the essential elements of the underlying offense. The court of appeals found that (t)he gist of the crimes charged in Counts III and IV was obstruction of justice, not the underlying civil rights violation, and all of the elements of that crime were clearly set forth. Further, the Section 242 violation was so fully and adequately explained that there was no chance that appellants were not sufficiently apprised as to what acts the obstruction counts were aimed. Likewise, the indictment was more than adequate to inform them of the charges they would face at trial. In fact, appellants do not contend that the indictment in any way prejudiced their defense. Pet. App. 36-37. The indictment here was a "plain, concise and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). It "contain(ed) the elements of the offense intended to be charged, 'and sufficiently apprise(d) the defendant(s) of what (they) must be prepared to meet.'" Russell v. United States. 359 U.S. 749, 763-764 (1962) (citations omitted). The court of appeals therefore did not err in ruling that the wording of Counts III and IV adequately charged violations of 18 U.S.C. 1512(b). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General JOHN R. DUNNE Assistant Attorney General DENNIS J. DIMSEY LINDA F. THOME Attorneys DECEMBER 1990 /1/ Monday, October 8, 1990 was a federal holiday. /2/ The court of appeals reversed a co-defendant's conviction on the ground that the district court's refusal to permit the defendant to confer with his lawyer during a weekend recess was a denial of the defendant's Sixth Amendment right to counsel. Pet. App. 37-44. /3/ At trial, petitioners testified that Pack had initiated the physical altercation. The jury rejected their version of events. Pet. App. 6 n.1. /4/ Count II charged all four defendants with a conspiracy to obstruct justice in violation of 18 U.S.C. 371. Pet. App. 62-67. The district court granted the defendants' motions for acquittal on this count at the close of the government's case. Pet. App. 9. /5/ Counts III and IV charged the defendants with having obstructed the investigation of "the commission of a federal offense" (i.e., the investigation of the Section 242 violation). Pet. App. 68, 70. Counts III and IV described the Section 242 offense in considerable detail, but omitted two of the elements of a Section 242 violation: that Pack was an inhabitant of a State, and that the defendants had acted willfully. Pet. App. 68-69, 70-71. These elements, however, were included in Count I, which alleged the underlying Section 242 violation. Pet. App. 61-62.