UNITED STATES OF AMERICA, versus NATHANIEL VEAL, JR., ANDY WATSON, PABLO CAMACHO, CHARLIE HAYNES, JR.
No. 95-4427
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
September 4, 1998
PUBLISH; D. C. Docket No. 93-352-CR-SM
UNITED STATES OF AMERICA,
Appeals from the United States District Court for the Southern District of Florida
(September 4, 1998)
Before ANDERSON and BIRCH, Circuit Judges, and WOODS*, Senior District Judge.
*Honorable Henry Woods, Senior U.S. District Judge for the Eastern District of Arkansas, sitting by designation.
These consolidated appeals from convictions of police officers under
I. FACTUAL AND PROCEDURAL BACKGROUND
On Friday, December 16, 1988, defendants-appellants Nathaniel Veal, Jr., Andy Watson, Pablo Camacho, and Charlie Haynes, Jr. as well as Ronald Sinclair and Thomas Trujillo were members of the Street Narcotics Unit (“SNU“) of the Miami Police Department. According to trial testimony, before the 4:00 P.M. roll call on that day, the Chief of Police received a letter in which an anonymous informant reported that unidentified drug dealers had met at 7th Avenue and 32nd Street, NW, in Miami and had contracted to kill Camacho. The SNU members were aware that this address was the residence of Leonardo Mercado, a drug dealer. Camacho, Veal, Watson, and Haynes were told of the death threat.
En route to a sting operation at the proximate location of 7th Avenue and 57th Street, NW, Camacho and Watson, Veal and Haynes, and Sinclair and Trujillo, proceeding in three undercover vehicles, stopped at Mercado‘s house and exited their vehicles. Camacho approached Mercado, who was outside, put his hand on Mercado‘s shoulder, and escorted him into his house. In the next few minutes, the other officers entered the house, closed the door, and lowered the curtains. Shortly thereafter, police cars and a fire/rescue unit with emergency medical treatment arrived in response to calls for assistance from Sinclair and Camacho.
When Officer Mary Reed of the Miami Police Department arrived and entered the house, she saw Camacho, Veal, Haynes, and Sinclair and a bloody Mercado lying on the floor moaning. Haynes pointed to Mercado and informed Reed that he was “the mother fucker that put a contract out on Camacho.” Supp.R8-22. The officers urged Reed to “get [her] kick in,” id. at 23, but she declined because “[h]e was in bad shape,” id. at 24. Despite emergency medical efforts, Mercado, who had suffered extensive head trauma and a severely bruised chest, died at the scene. A subsequent autopsy revealed multiple bruises and bloody wounds to his head, scalp, neck and face as well as fractured ribs.
Knowing that Mercado was dead, Camacho, Veal, Watson, Haynes, and other SNU officers left the scene and returned to the police department. Various eyewitnesses testified that they saw Camacho, Veal, Watson, Haynes, Sinclair, and Trujillo when they returned to the police station, entered the lieutenant‘s office, and closed the door. Although none of these individuals had noticed anything unusual about Camacho‘s appearance when he entered the lieutenant‘s office, the witnesses saw a rip in the front, chest area of his shirt and on the sleeve when he left that office. While inside the SNU lieutenant‘s office, one of the officers took pictures of Camacho that purportedly reflected his condition after the altercation with Mercado. These photographs, showing a long rip in the front of Camacho‘s shirt, which also was missing a pocket, were placed in the lieutenant‘s cabinet together with a butcher knife, supposedly retrieved from the altercation scene, and a bag of crack cocaine allegedly seized from Mercado.
At 7:55 P.M. that evening, Camacho went to the office of crime-scene technician Sylvia Romans, who photographed arrestees and/or
A freelance photographer took random photographs at the Mercado residence after the altercation. One photograph showed Camacho at the doorway of Mercado‘s residence; his shirt was undamaged with no tear in the front and the pocket was intact. The same freelance photographer came to the SNU office and took additional photographs of Camacho that showed a large rip in the front of his shirt that had been taped together and the pocket was missing. When Camacho went to Romans‘s office a short time later to have her photograph him, the tape had been removed, the rips to his shirt were exposed, and there was no pocket on his shirt. Two visiting Detroit police officers accompanied the SNU lieutenant to Mercado‘s house. One testified that she saw an officer leaving the house with a rusty butcher knife. She saw a similar knife on the table in the lieutenant‘s office when the officers left that office.
At trial, an expert in fiber analysis was asked whether the tears to Camacho‘s shirt resulted from knife cuts or a tear. The expert testified that a mechanical object had been used to make a half-inch cut to the front of the shirt and that the shirt then had been ripped with a fifteen-inch tear. The damage to the right sleeve also was consistent with the shirt having been cut with a mechanical object and then torn. Similarly, the damage to the pocket area was consistent with the pocket having been cut and then torn from the shirt.
Camacho later was treated at a hospital for elevated blood pressure and swelling; none of the other officers had any injuries. In the hours following Mercado‘s death, Miami homicide investigators were advised that Camacho had been involved in the altercation with Mercado but that Veal, Watson, Haynes, and Sinclair had not. In the early morning hours of December 17, 1988, Veal, Watson, Haynes, and Sinclair gave statements to state homicide investigators regarding their knowledge of the circumstances surrounding Mercado‘s death. Each asserted that the officers had stopped at Mercado‘s house because Camacho had seen some drug activity there that justified investigation and not because of the death threat to Camacho. Each denied having physical contact with Mercado or having heard or seen anything that would explain or assist the investigators in determining how Mercado‘s injuries had occurred. They stated that, by the time that they were inside the house, the altercation was over and Mercado was on the floor. Veal, Watson and Haynes also denied meeting with Camacho at the SNU office.
At trial, an expert in forensic serology and blood-stain-pattern interpretation compared the blood stains on Mercado to the blood stains on the clothing and shoes worn by Camacho, Veal, Watson, and Haynes on December 16, 1988. Thus, he reconstructed who had come into contact with Mercado and the amount of force used during this contact. The expert found that Veal‘s pants and shoes were covered with blood stains of Mercado‘s type. The blood spatter on Veal‘s pants and shoes was consistent with Veal‘s having struck Mercado multiple times using medium to medium-high force. The back of Veal‘s right shoe had a pattern consistent with having been stamped into Mercado‘s head multiple times. Additionally, shoe patterns on the seat and ankle areas of Mercado‘s pants matched Veal‘s right shoe.
Similarly, Watson‘s pants were blood-stained inside the cuffs and all the way up to the lap and pocket areas. The blood spatter on Watson‘s pants and sneakers was consistent with his having been within two to three feet of a direct impact to Mercado of medium to medium-high force. The location of the blood on Watson‘s pants and the spatter of Mercado‘s blood on two walls in the corner of the room above the bed was consistent with Watson‘s having been in the immediate vicinity of a direct impact to Mercado‘s head while Mercado was in an upright position in the corner of the room near the bed and not after Mercado was on the floor. A criminology
Haynes‘s left shoe had blood on it and his shirt had one blood spot. His pants, however, had no blood stains because he had laundered his pants and shoe laces before being asked to surrender them. A criminology expert testified that the wounds on Mercado‘s forehead and left cheek near his eye matched Haynes‘s left shoe and were consistent with a single contact.
On Monday, December 19, 1988, Federal Bureau of Investigation (“FBI“) Agent David Hedgecock, assigned to the civil rights unit in Miami, learned of the incident resulting in Mercado‘s death and opened an investigation in conjunction with Miami Police Department homicide detectives. This investigation led to federal, civil rights charges against Camacho, Veal, Watson, Haynes, Sinclair, and Trujillo. In conducting the FBI investigation, Hedgecock received, reviewed, and used all of the evidence collected by the state, including the officers’ statements, Romans‘s photographs of Camacho, and all other physical evidence. The officers were charged with infringing Mercado‘s civil rights in violation of
In the federal civil rights case that was tried in 1990, the officers moved pursuant to Garrity to suppress their statements concerning the circumstances of Mercado‘s death. The district judge granted the officers’ suppression motions because he determined that the statements made by Veal, Watson and Haynes resulting from questioning at the police station and with the advice of counsel were within the scope of Garrity.2 See United States v. Camacho, 739 F. Supp. 1504 (S.D. Fla. 1990). The civil rights trial resulted in acquittals on the conspiracy count, and the jury was unable to reach a verdict on the substantive counts. Sinclair died after the civil rights trial.
In July, 1993, a federal grand jury in the Southern District of Florida indicted Camacho, Veal, Watson, and Haynes.3 They were charged in Count I with conspiring under
the communication of information relating to the possible commission of a federal offense to a federal law enforcement officer or judge in violation of
All of the officers moved to dismiss Count II because it failed to allege facts sufficient to constitute a violation of
Following a ten-week trial, Camacho, Veal, Watson, and Haynes were convicted on Count II and acquitted on all other counts. The district judge denied their motions for judgments notwithstanding the verdict and/or for a new trial. Camacho was sentenced to thirty months of imprisonment and two years of supervised release. Veal, Watson and Haynes each were sentenced to twenty-one months of imprisonment and two years of supervised release. All remain on bond pending appeal.
II. ANALYSIS
On appeal, Veal, Watson and Haynes challenge the district judge‘s denial of their motions to suppress their statements after Mercado‘s death because the same judge had suppressed those statements under Garrity
A. Admission of Statements Previously Suppressed Under Garrity
Veal, Watson and Haynes argue that the district judge erred by permitting the government to use their statements concerning Mercado‘s death in the obstruction of justice trial when that judge had suppressed those statements under Garrity in the civil rights trial. In Garrity, the Supreme Court held that Fifth Amendment protections apply to police officers subjected to interrogation by other law enforcement officers and that incriminating statements made under threat of termination for remaining silent are inadmissible in a subsequent criminal prosecution concerning the matter of inquiry absent a knowing and voluntary waiver.4 Garrity, 385 U.S. at 500, 87 S.Ct. at 620. Following an evidentiary hearing, the district judge suppressed the officers’ statements under Garrity in the civil rights trial because he concluded
that the Defendants Haynes, Sinclair, Veal and Watson subjectively believed that failure to answer would result in termination, that they believed they could not invoke the
Fifth Amendment without being fired, that these beliefs under the facts of this case were objectively reasonable, and that the actions of the State were directly implicated in creating this belief.
Camacho, 739 F. Supp. at 1520. The district judge reasoned that, because counsel had informed the officers “that they must give statements and answer every question put by the investigators, that they could not invoke the Fifth Amendment, and that they had Garrity immunity,” id. at 1517-18, the officers “reasonably believed that they were compelled to waive their Fifth Amendment rights during their interviews with the investigating officers,” id. at 1518.
In the obstruction case, the government alleged that the officers acted individually and collectively to impede the official investigation into the death of Mercado. Veal, Watson and Haynes sought suppression of their statements made to state investigating officials at police headquarters on December 17, 1988.5 They argue that these statements, suppressed under Garrity in the civil rights trial, should not
have been admitted into evidence in the obstruction case to establish charges of conspiracy to obstruct justice, conspiracy to tamper with a witness, tampering with a witness, and perjury. Concluding that Garrity and the Fifth Amendment do not protect false statements from subsequent prosecutions for such crimes as perjury and obstruction of justice, the district judge admitted the officers’ statements.
Veal, Watson and Haynes contend that their statements suppressed in the civil rights trial were per se inadmissible in the obstruction of justice trial. They argue that statements declared to be protected by Garrity are forever barred from use in any prosecution, including one for perjury, false statements, or obstruction of justice.6 Their
coerced because they would have been fired from the police department if they had not provided statements.
In determining whether the government may use Garrity statements in a subsequent federal, criminal prosecution, we note that the Supreme Court has been resolute in holding that the Fifth Amendment does not shield perjured or false statements. Concerning false testimony before a grand jury, the Court spoke clearly and strongly:
In this constitutional process of securing a witness’ testimony, perjury simply has no place whatsoever. Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Hence, Congress has made the giving of false answers a criminal act punishable by severe penalties . . . .
[A] witness sworn to tell the truth before a duly constituted grand jury will not be heard to call for suppression of false statements made to that jury, any more than would be the case with false testimony before a petit jury or other duly constituted tribunal.
United States v. Mandujano, 425 U.S. 564, 576, 582, 96 S.Ct. 1768, 1776, 1779 (1976) (emphasis added); see United States v. Wong, 431 U.S. 174, 178, 97 S.Ct. 1823, 1825 (1977) (regarding false, grand jury testimony about bribing undercover police officers, the Court emphasized that “the Fifth Amendment privilege does not condone perjury. It grants a privilege to remain silent without risking contempt, but it ‘does not endow the person who testifies with a license to commit perjury.‘” (quoting Glickstein v. United States, 222 U.S. 139, 142, 32 S.Ct. 71, 73 (1911))); see also United States v. Knox, 396 U.S. 77, 82, 90 S.Ct. 363, 366 (1969) (explaining that the predicament of having to choose between incriminatory truth and falsehood, as opposed to refusing to answer, does not justify perjury or answering falsely in a case involving filing a false tax return, the Court concluded that the defendant took “a course that the Fifth Amendment gave him no privilege to take.“). Using this authority, our court declined to suppress false grand jury testimony and upheld a conviction under
Even in the case of statutorily immunized testimony, the “Court has never held . . . that the Fifth Amendment requires immunity statutes to preclude all uses of immunized testimony. . . . [N]either the immunity statute nor the Fifth Amendment precludes the use of respondent‘s immunized testimony at a subsequent prosecution for making false statements.” United States v. Apfelbaum, 445 U.S. 115, 125, 131, 100 S.Ct. 948, 954, 957 (1980).7 Thus, an
defeated.8 The Court noted that “[t]he legislative history of [
that accompany the obligation to tell the truth, such as in an investigation, do not justify “communicating false information[, which is] simply not testimonial compulsion“).
Like false testimony before a grand jury, the Court has not excluded from criminal liability false statements made to governmental agents or agencies, whether or not those statements were made under oath. In upholding a conviction for falsely denying Communist affiliation in an affidavit filed with a governmental agency, the Court stated: “Our legal system provides methods for challenging the Government‘s right to ask questions—lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.” Bryson v. United States, 396 U.S. 64, 72, 90 S. Ct. 355, 360 (1969) (footnote omitted). In determining that the false “exculpatory no” answer in response to governmental agents conducting an investigation is not excluded from prosecution for false statements, the Court explained: “Certainly the investigation of wrongdoing is a proper governmental function; and since it is the very purpose of an investigation to uncover the truth, any falsehood relating to the subject of the investigation perverts that function.” Brogan v. United States, ___ U.S. ___, ___, 118 S. Ct. 805, 809 (1998). The Court concluded that “neither the text nor the spirit of the Fifth Amendment confers a privilege to lie.” Id. at ___, 118 S. Ct. at 810. Holding that a government agency may take adverse action against employees who make false statements to agency investigators concerning alleged misconduct, the Court determined that it was irrelevant that the statements were not made under oath for the purpose of criminal culpability. See LaChance, ___ U.S. at ___, 118 S. Ct. at 756. Thus, the Court has determined that the
Although the Supreme Court has not addressed the specific issue before us where the false statements previously were suppressed in the Garrity context, other circuits have held that the
[A]ppellant claims that his testimony under compulsion before the grand jury, because his failure to waive immunity would have resulted in dismissal from public employment, violated his privilege against self-incrimination under the Fifth and Fourteenth Amendments. . . . [A]ppellant was not prosecuted for past criminal activity based on what he was forced to reveal about himself; he was prosecuted for the commission of a crime while testifying, i.e. perjury. In short, where a public employee may not be put to the Hobson‘s Choice of self-incrimination or unemployment, he is not privileged to resort to the third alternative, i.e., lying. The Supreme Court has squarely so held.
Id. at 306 (emphasis added).
In several cases, the Seventh Circuit followed the reasoning of Annunziato and affirmed the convictions of Chicago police officers for making false statements before a grand jury in violation of
Garrity and its progeny do not proscribe the use, in a criminal prosecution under
18 U.S.C. § 1621 or§ 1623 , of a defendant‘s allegedly perjurious statements . . . . Garrity provides the witness with adequate protection against the government‘s use, in subsequent criminal proceedings, of information obtained as a result of his testimony, where his refusal to testify would form the basis for disciplinary action against him. Gardner [v. Broderick, 392 U.S. 273, 88 S. Ct. 1913, 20 L. Ed. 2d 1082 (1968),] and [Uniformed] Sanitation Men [Ass‘n v. Commissioner of Sanitation, 392 U.S. 280, 88 S. Ct. 1917, 20 L. Ed. 2d 1089 (1968),] provide the witness with a shield against such disciplinary action based upon his refusal to testify, in cases in which he refuses to do so, believing that his testimony or the fruits thereof can be used against him in subsequent criminal proceedings. Together, these decisions provide adequate protection of the witness‘s Fifth Amendment rights. We find no reason or justification for extending this umbrella of protection to shield a witness against prosecution for knowingly giving false testimony.
Id. at 142 (emphasis added); see also United States v. Pacente, 503 F.2d 543 (7th Cir. 1974) (en banc); United States v. Nickels, 502 F.2d 1173 (7th Cir. 1974).
The Third Circuit also addressed similar facts in Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 859 F.2d 276, 281 (3d Cir. 1988), where a police officer union brought suit against the city and argued that a questionnaire plus a polygraph examination that had to be completed prior to an officer‘s admission into a special unit of the police department violated the officer‘s Fifth Amendment rights. The court explained:
[T]his argument [police union‘s argument that threat of demotion or failure to obtain promotion absent completion of application violates Fifth Amendment] presents us with a mixture of plainly erroneous and potentially meritorious but more difficult issues. There can be no question, for instance, that the police department may prosecute officers for lying on the questionnaire under Pennsylvania law. The fifth amendment does not protect a citizen against the consequences of committing perjury. See U.S. ex rel. Annunziato v. Deegan, 440 F.2d 304 (2d Cir. 1971) (upholding public employee‘s conviction for perjury based upon testimony obtained under threat of discharge).
Lodge No. 5, 859 F.2d at 281 (emphasis added). Thus, the Annunziato reasoning has influenced other circuits in addressing this issue with the conclusion that the
Although an accused may not be forced to choose between incriminating himself and losing his job under Garrity, neither Garrity nor the
Watson and Haynes also argue that their statements were coerced in violation of their Fifth Amendment rights under Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408 (1978).12 The officers apparently contend that the compulsion under which they gave their statements caused the district judge to suppress their statements under Garrity in the civil rights trial; therefore, those statements should not have been used in the obstruction trial.13 This argument
The predicament in which Veal, Watson and Haynes found themselves at police headquarters in the early morning hours of December 17, 1988, was of their own making. While they feared the loss of their jobs if they claimed the Fifth Amendment and remained silent, Garrity did not afford them refuge to give false statements to investigators and not be prosecuted for obstruction of justice. Their deliberate, false statements resulted from their independent, voluntary choices and impeded the investigation of Mercado‘s death. By giving false statements, they obstructed justice relating to the investigation of Mercado‘s death and provided the avenue for prosecution in this case which would have been unavailable if they had told the truth.
B. Interpretation and Application of 18 U.S.C. § 1512(b)(3)
Veal, Watson, Haynes, and Camacho argue that Count II, as charged in the indictment and as the jury was instructed on it, fails to state a violation of
1. Statutory Construction
Count II of the indictment, the only count on which Veal, Watson, Haynes, and Camacho were convicted, states that they
did knowingly engage in misleading conduct toward another person, to wit: law enforcement investigators of the State of Florida, with the intent to hinder, delay, and prevent the communication to a law enforcement officer and judge of the United States of America of information relating to the possible commission of a federal offense, that is, the defendants did knowingly mislead State of Florida law enforcement investigators, and other persons, in order to prevent them from communicating to agents of the Federal Bureau of Investigation and the United States Department of Justice and judges of the United States of America, information relating to the true circumstances surrounding the death of Leonardo Mercado on December 16, 1988.
All in violation of Title 18, United States Code, Sections 1512(b)(3) and 2.
R1-1-9-10. The statute at issue,
Tampering with a witness, victim, or an informant
. . . .
(b) Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—
. . . .
(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings;
shall be fined under this title or imprisoned not more than ten years, or both.
Veal, Watson, Haynes, and Camacho contend that “another person” in
Our court reviews a district court‘s statutory interpretation and application de novo. See United States v. Grigsby, 111 F.3d 806, 816 (11th Cir. 1997). In construing a statute, we first look to the plain language of the statute. See Albernaz v. United States, 450 U.S. 333, 336, 101 S. Ct. 1137, 1141 (1981). Words are interpreted with their ordinary and plain meaning because we assume that Congress uses words in a statute as they are commonly understood; we give each provision full effect. See United States v. McLeod, 53 F.3d 322, 324 (11th Cir. 1995). Review of legislative history is unnecessary “unless a statute is inescapably ambiguous.” Solis-Ramirez v. United States Dep‘t of Justice, 758 F.2d 1426, 1430 (11th Cir. 1985) (per curiam); see United States v. Rush, 874 F.2d 1513, 1514 (11th Cir. 1989) (stating that, where statutory language is clear, we will not create an ambiguity with legislative history). Therefore, we deem the plain language of the statute to be conclusive as clearly expressing legislative intent, unless the resulting application would be “absurd” or “internal inconsistencies” must be resolved. See United States v. Turkette, 452 U.S. 576, 580, 101 S. Ct. 2524, 2527 (1981).
The application of these principles exposes the infirmities in the arguments by Veal, Watson, Haynes, and Camacho. To reach an analysis of legislative history, they first must show that “another person” is ambiguous and requires the aid of legislative history for interpretation. As the district court found, there is no ambiguity in “another person,” which is easily and commonly understood to mean any person, regardless of whether he possessed knowledge of the commission or possible commission of a federal crime from being an eyewitness or investigating official. The statute broadly forbids one to “engage[] in misleading conduct toward another person, with the intent to . . . hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense.”
Furthermore, using this common definition does not lead to an absurd result. Veal, Watson, Haynes, and Camacho argue that acceptance of the plain language of the statute would federally criminalize every false statement made by anyone to any police officer. The clear language of the statute, however, negates that interpretation because of the statutorily prescribed federal nexus with federal agencies and judges. There is nothing irrational about a federal statute that seeks to prevent any person from perverting the truth-seeking function of investigative or judicial processes. See McLeod, 53 F.3d at 324 (observing that interpreting
Additionally, a plain-language reading of
The rule of ejusdem generis is “no more than an aid to construction and comes into play only when there is some uncertainty as to the meaning of a particular clause in a statute.” Id. at 581, 101 S. Ct. at 2528. In declining to apply the principle of ejusdem generis to determine that only false statements that pervert governmental functions are encompassed by
Nothing in the statutory language or the caption contains this artificial definition that they advance. The title states “witness“; it does not state or require that the witness have pre-existing knowledge. Significantly, police officers, as a consequence of their occupation, become witnesses as a matter of course in each investigation in which they are involved. Thus, the terms used in the statutory title do not exempt police officers.
The fact that Congress did not use restrictive language in drafting
Even if review of the legislative history were appropriate, it rejects the rule of ejusdem generis and discredits the restrictive view of the statute presented by Veal, Watson, Haynes, and Camacho. See Victim & Witness Protection Act of 1982, S. Rep. No. 97-532, at 18 (1982), reprinted in 1982 U.S.C.C.A.N. 2515, 2524. The Senate Report evinces legislative intent to expand the existing “obstruction of justice” statutory scheme by enacting
the purpose of preventing an obstruction or miscarriage of justice cannot be fully carried out by a simple enumeration of the commonly prosecuted obstruction offenses. There must also be protection against the rare type of conduct that is the product of the inventive criminal mind and which also thwarts justice.
does not intend that the doctrine of ejusdem generis be applied to limit the coverage of [subsection (b)(3)]. Instead, the analysis should be functional in nature to cover conduct the function of which is to tamper with a witness, victim, or informant in order to frustrate the ends of justice. For example, a person who induces another to remain silent or to give misleading information to a Federal law enforcement officer would be guilty under subsection [(b)(3)], irrespective of whether he employed deception, intimidation, threat, or force as to the person.
Thus, the Senate Report on subsection (b)(3) reveals that it is to be read to include a wide range of conduct that thwarts justice. The actions of Veal, Watson, Haynes, and Camacho fit within the Committee‘s discussion of proscribed conduct, which expressly includes activities designed to create witnesses as part of a cover-up and to use unwitting third parties or entities to deflect the efforts of law enforcement agents in discovering the truth. Veal, Watson, Haynes, and Camacho used deception to thwart the investigation into Mercado‘s death by creating false and misleading information, which they related to state investigators with the knowledge that this information would be relayed to and relied upon by other investigators. To ensure that they would be exonerated of any wrongdoing in Mercado‘s death, they further used police officers and personnel, such as the technician photographer of Camacho‘s shirt, who they either
knew would be or likely would be witnesses in the Mercado investigation, as conduits to create false and misleading evidence about the events resulting in Mercado‘s death. Cf. United States v. King, 762 F.2d 232 (2d Cir. 1985) (observing that
2. Federal Nexus
Veal, Watson, Haynes, and Camacho also argue that their conviction for violating
regarding this issue misled the jury and erroneously resulted in their convictions.
This federal nexus argument implicates the specific intent or mens rea requirements for violating
In order to sustain its burden of proof as to this charge, count two, the Government must prove the following three essential elements beyond a reasonable doubt: First, that the defendant knowingly engaged in misleading conduct toward another person.
Second, that the defendant did so with the intent to hinder, delay or prevent the communication to a law enforcement officer or Judge of the United States.
And, third, that such information related to the commission or possible commission of a Federal offense.
. . . .
[T]he Government does not need to prove any state of mind with respect to the circumstances that the Judge or law enforcement officer is an official or employee of the Federal Government. That is, the Government does not need to prove that the defendant knew that the law enforcement officer was a Federal law enforcement officer, or that the Judge was a Federal Judge, so long as the law enforcement officer or Judge is, in fact, a law enforcement officer or Judge of the United States. The term “law enforcement officer” simply means an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an advisor or consultant authorized under the law to engage in or supervis[e] the prevention, detection, investigation, or prosecution of an offense.
While the Government must prove, ladies and gentlemen of the jury, beyond a reasonable doubt that the defendant intended to hinder, delay or prevent the communication of information actually related to the commission or possible commission of a Federal offense, the Government does not need to prove that the defendant knew that the offense was Federal in nature.
R43-26, 28 (emphasis added). At the outset, we recognize that the actions of Veal, Watson, Haynes, and Camacho on December 16 and 17, 1988, constituted intentional “misleading conduct” under
to
statutes that Veal, Watson, Haynes, and Camacho argue are analogous to
Congress has enacted numerous obstruction of justice statutes designed to criminalize a variety of conduct. See generally
Sections
The reliance of Veal, Watson, Haynes, and Camacho on United States v. Shively, 927 F.2d 804 (5th Cir. 1991), therefore, is misplaced. In Shively, defendants-appellants intimidated a witness by insinuating harm to his family and, consequently, caused him to testify falsely at a deposition for a case pending in state court two and a half years before a federal grand jury indictment. See id. at 810-11. Because the criminal conduct in that case did not concern a federal “official proceeding” as required under
Similarly, the Supreme Court‘s decision in United States v. Aguilar, 515 U.S. 593, 115 S.Ct. 2357 (1995), concerning a federal judge who gave false and misleading information to FBI agents during a grand jury investigation, does not assist Veal, Watson, Haynes, and Camacho. That case involved the Court‘s consideration of the catchall provision of
In terms of sufficiency of evidence to support Aguilar‘s conviction, the Court held that his false statements to an FBI agent were insufficient to meet that nexus in the absence of proof that he knew that such statements would be provided to a grand jury. The request by Veal, Watson, Haynes, and Camacho that we superimpose the nexus requirement of “due administration of justice” in
Section
authorities regarding a possible federal crime is the important federal interest that
Significantly,
consultant.
720 n.9 (11th Cir. 1992) (affirming
Likewise,
or real, about the federal character of the crime. As the district judge determined, the statute provides that one who transmits misleading information with the intent to hinder, delay or prevent the communication of information to a law enforcement officer or judge is accountable under
By its plain wording,
C. Sufficiency of the Evidence
Veal, Watson, Haynes, and Camacho argue that the evidence was insufficient to support their convictions for violating
We review challenges to sufficiency of the evidence de novo and assess the evidence in the light most favorable to the prosecution. See United States v. Suba, 132 F.3d 662, 671 (11th Cir. 1998). We make all reasonable inferences and credibility choices in favor of the jury‘s verdict as we evaluate the evidence to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979)). To prove a violation of
We have explained that “another person” is unrestricted and includes the state investigators, who were the conduit for relaying false and misleading information imparted to them by Veal, Watson and Haynes to federal authorities. Furthermore, because
1. Veal, Watson and Haynes
The culpability of Veal, Watson and Haynes is based on their December 17, 1988, statements wherein they disavowed touching Mercado, observing any contact with him, or having any knowledge of the cause of his injuries29 and also denied meeting at the police department after Mercado‘s death to discuss the incident.30 The trial evidence revealed that, by the time that Veal, Watson and Haynes made their statements at approximately 2:00 A.M. on December 17, 1988, they knew that Mercado was dead. They also knew that the state investigators who questioned them were obtaining information about how Mercado received the injuries that resulted in his death. Veal, Watson and Haynes unequivocally avowed that, when they
entered Mercado‘s residence, the struggle was over and that the injured Mercado was lying on the floor.
Nevertheless, reasonable jurors could disbelieve those statements based upon the blood-spatter evidence, which conclusively placed Veal, Watson, Haynes, and Camacho at the scene at the time of Mercado‘s fatal injuries. Although Veal professed noninvolvement, the blood-spatter evidence showed that he had struck Mercado multiple times using medium to medium-high force and that he was present when others struck Mercado. Similarly, that evidence showed that Watson had kicked Mercado in the head with his shoe as many as four times and that he knew that officers other than Camacho also had kicked Mercado. The blood-spatter evidence additionally revealed that Haynes kicked Mercado in the face at least once and that he was present when others struck Mercado.
Although Veal, Watson and Haynes portrayed themselves as being ignorant of any attempt to discuss collectively the Mercado
2. Camacho
Camacho argues that evidence regarding his ripped shirt and his presentation of it to police technician Romans for photographing is insufficient to constitute misleading conduct with intent to hinder or prevent the communication of information to law enforcement personnel.31 To the contrary, this evidence fits within the proscriptions of
Camacho asked Romans to photograph his shirt under circumstances that logically would lead any investigator who received
the photographs to believe that the condition of the shirt was a direct result of the altercation with Mercado and, thus, to arrive at erroneous conclusions about the nature of the incident.32 Jurors reasonably could have determined that Camacho deliberately tore his shirt to create exculpatory evidence because of: the undisputed fact that the shirt was undamaged at the scene after the altercation; the suspect and surreptitious manner in which the shirt came to be damaged at the police station; Camacho‘s presentation of himself and his shirt to Romans who typically takes such pictures to document injuries to officers in “control” situations; the pictures taken of Camacho inside the lieutenant‘s office, which clearly were intended to show that Camacho‘s shirt had been damaged during a fight with Mercado; the forensic evidence, which contradicts the impression that Camacho attempted to create of how the shirt was damaged as an item of evidence pertinent to the control investigation; and the fact that
Camacho, a veteran police officer, knew that any photographs taken of him following his participation in a control situation would be relied upon by investigators in their efforts to determine the cause of Mercado‘s death at his residence. Therefore, the jurors logically could have inferred that Camacho
D. Jury Instructions Regarding Materiality
Veal argues that the district judge improperly instructed the jury regarding materiality because he informed the jurors that materiality was a legal question for the court to decide in contradiction of United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310 (1995), which reallocated the determination of the materiality of a false statement under
extended Gaudin to all cases where materiality is an element of the offense. See United States v. De Castro, 113 F.3d 176, 178 (11th Cir. 1997). The determination of whether materiality is an element of a particular crime is a question of law reviewed de novo. See id.
For cases on direct appeal at the time that it was decided, such as this case, Gaudin applies retroactively. See United States v. Fern, 117 F.3d 1298, 1307 (11th Cir. 1997) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 715 (1987)). We review for plain error when the purported error on appeal is the result of a subsequent Supreme Court decision and no error was asserted at trial.34 See id. Our review of the record reveals that the materiality definition, which Veal contests, was discussed at the charge conference and given at
trial in the context of the pending perjury counts alleging violation of
The only reference to “material” in the district judge‘s instructions concerning
district judge‘s “materiality” instruction relating to the perjury counts under
judge properly did not submit the question of materiality to the jury), cert. denied, ___ U.S. ___, 117 S.Ct. 94 (1996). Nevertheless, Veal‘s Gaudin argument fails because, following the district judge‘s instructions for Count II, to which there was no objection at the charge conference or at trial, the jury and not the district judge made the decision regarding whether the officers’ actions constituted “misleading conduct” under
III. CONCLUSION
Veal, Watson, Haynes, and Camacho, experienced narcotics police officers, have presented various issues in an effort to overturn their convictions under
Notes
Robert Klausner [attorney for the Fraternal Order of Police] testified unequivocally — and we credit his testimony — that on the night of the incident he advised Defendants Haynes, Sinclair, Veal and Watson that the applicable rules and regulations prohibited witness officers from invoking their privilege against self-incrimination, that they would have to to answer all questions truthfully and finally that if they refused to answer they would be fired. . . . . Defendants Haynes, Sinclair, Veal and Watson also persuasively argue that they felt they were required to give a statement based upon the advice of counsel. Attorney Klausner testified that his advice to the officers was to answer truthfully every question put by the investigating officers, under penalty of job loss.Camacho, 739 F. Supp. at 1516, 1517 (emphasis added).
The fifth amendment preserves the right to choose, and the voluntariness of the choice is always affected in some way by the exigencies of a particular situation. The voluntariness inquiry necessarily incorporates an understanding that defendant cannot be free from conflicting concerns, and in any case, defendant must weigh the relative advantages of silence and explanation.White, 589 F.2d at 1287 (emphasis added).
(A) knowingly making a false statement;
(B) intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement;
(C) with intent to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged, altered, or otherwise lacking in authenticity;
(D) with intent to mislead, knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark, or other object that is misleading in a material respect; or
(E) knowingly using a trick, scheme, or device with intent to mislead.
Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b). If the offense under this section occurs in connection with a trial of a criminal case, and the act in violation of this section involves the threat of physical force or physical force, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case.
(a)(1)Whoever kills or attempts to kill another person, with intent to--
(A) prevent the attendance or testimony of any person in an official proceeding;
(B) prevent the production of a record, document, or other object, in an official proceeding; or
(C) prevent the communication by any person to a law
enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings; shall be punished as provided in paragraph (2).(b) Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to--
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to--
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object‘s integrity or availability for use in an official proceeding;
(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or
(D) be absent from an official proceeding to which such person has been summoned by legal process . . .
. . . . shall be fined under this title or imprisoned not more than ten years, or both.
means an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an advisor or consultant--
(A) authorized under law to engage in or supervise the prevention, detection, investigation, or prosecution of an offense; or
(B) serving as a probation or pretrial services officer under this title[.]
whoever, in any manner within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully-
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement
or representation; or(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title or imprisoned not more than 5 years, or both.Now, with regard to “materiality,” the materiality of the matter involved in the alleged false testimony is not a matter with which you are concerned, but, rather, is a question for the Court to decide. You are instructed that the questions asked of a defendant, as alleged in each of the respective counts, constitute[] material matters in the court proceedings referred to in the Indictment.
R43-30.[F]or the purposes of this offense charged in count two, you are instructed that the term “misleading conduct” means the following: A, knowingly making a false statement, or, B, knowingly . . . intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement, or, C, with intent to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged, altered, or otherwise lacking in authenticity, or, D, with intent to mislead, knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark or
other object that is misleading in a material respect, or, finally, E, knowingly using a trick, scheme, or device with intent to mislead.R43-27 (emphasis added); see