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United States v. Brown

United States Court of Appeals, Eleventh Circuit

August 14, 2019

UNITED STATES OF AMERICA Plaintiff-Appellee Cross Appellant,
v.
MICHAEL C. BROWN, Defendant-Appellant Cross Appellee. UNITED STATES OF AMERICA Plaintiff-Appellee Cross Appellant,
v.
PHILIP N. ANTICO, Defendant-Appellant Cross Appellee.

          Appeals from the United States District Court for the Southern District of Florida, Nos. 9:17-cr-80102-RLR-1, 9:17-cr-80102-RLR-4

          Before WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.

          WILLIAM PRYOR, CIRCUIT JUDGE.

         The main issue presented by these consolidated appeals is whether sufficient evidence supports the convictions of Michael Brown for deprivation of rights under color of law, 18 U.S.C. § 242, and of Philip Antico for obstruction of justice, id. § 1512(b)(3), for offenses involving an incident of police brutality and a later coverup. Brown was one of several police officers who assaulted the occupants of a vehicle that led the officers on a high-speed chase. After the incident, Brown and the other officers filed reports that omitted most of the details about how they punched and kicked the occupants. Antico supervised many of these officers, and after a video of the incident came to light, he had his subordinates substantially change their reports to better reflect what happened as recorded on the video. When agents of the Federal Bureau of Investigation interviewed Antico about the incident, he gave misleading answers that concealed that his subordinates' reports had been changed. At separate jury trials, Brown was convicted of deprivation of rights under color of law for his role in the assault, and Antico was convicted of obstruction of justice. At sentencing for both defendants, the district court rejected the government's argument that their Sentencing Guidelines ranges should be calculated using aggravated assault as the underlying offense. The district court sentenced Brown and Antico to downward-variance sentences of three years' probation. Brown's and Antico's primary challenge is to the sufficiency of the evidence, and the government cross-appeals their sentences. Because there is sufficient evidence to support the convictions and no other reversible errors occurred related to either trial, we affirm the convictions. But because it is unclear whether the calculation of each defendant's guideline range rested on a factual finding infected by legal error, we vacate Brown's and Antico's sentences and remand for resentencing.

         I. BACKGROUND

         We divide our background discussion in three parts. First, we describe the facts of the assault and the coverup. Second, we discuss the prosecution of Brown. Third, we discuss the prosecution of Antico.

         A. The Facts.

         In the early morning of August 20, 2014, Officer Justin Harris of the Boynton Beach Police Department tried to perform a traffic stop of a vehicle in which "B.H." was the driver and "J.B." and "A.H." were passengers. B.H. refused to stop as directed but did not otherwise attempt to evade the officer, so Harris continued following him. As B.H. approached an entrance to the highway, his vehicle struck an officer who was on foot. A high-speed chase involving several officers, including Officer Michael Brown, ensued. During the chase, the officers heard over the radio that B.H. had intentionally struck an officer with his car. After B.H. turned onto a residential street, Brown rammed the suspect vehicle and forced it to stop. A group of officers, including Brown, Harris, Ronald Ryan, and several others, approached the vehicle with their guns drawn.

         Brown and several other officers then assaulted the vehicle's occupants. Brown was one of the first to reach the vehicle, and he moved toward the front passenger door. Within seconds of reaching the door, he opened it and repeatedly punched and kicked the front-seat passenger, J.B. Officers Harris and Ryan arrived seconds later, and they also repeatedly struck J.B. While J.B. was still in the car with his seatbelt on, Brown attempted to use his Taser against him, twice pulling the trigger and ejecting the Taser's probes. After dragging B.H. and A.H. from the vehicle, other officers repeatedly struck and kicked them. While the assault was occurring, a Palm Beach County Sheriff's Office helicopter flying overhead recorded the incident.

         Two of the vehicle's occupants sustained injuries during the assault. B.H. suffered severe lacerations to his head and face and bruising that caused his eyes to swell shut. J.B. also suffered severe bruising and lacerations on the face.

         Sergeant Antico, the direct supervisor of Brown, Harris, and Ryan, was not at the scene of the assault. During the chase, he monitored events on the radio, and he stopped to attend to the injured officer. But he saw B.H. at the hospital the night of the incident and was aware of his injuries. And he expected his officers to document the strikes they had used. Antico left for a scheduled vacation from August 20 to August 27, so he did not review the involved officers' reports until he returned.

         Hours after the incident but before they learned about the video from the police helicopter, the involved officers-including Brown, Harris, and Ryan- submitted officer reports about the incident. Boynton police officers are trained that an officer report is the primary document for reporting the details about an officer's use of force. An officer report should include a narrative account that recounts the types of force an officer used and the circumstances that justified their use. For example, if an officer struck and kicked a suspect, he would be expected to include those details in his officer report.

         Five of the involved officers failed to accurately record their use of force in their officer reports. Brown wrote in his report that he used a Taser against J.B. after J.B. ignored loud verbal commands to exit the vehicle, but he did not describe striking or kicking J.B. Ryan wrote in his report that after Brown used his Taser against J.B. for failing to exit the vehicle, J.B. complied and was handcuffed. Ryan failed to note that he had repeatedly punched J.B. Harris wrote in his report that when he arrived at the vehicle, Brown and Ryan were struggling with J.B., who refused to exit the vehicle or show the officers his hands. Harris stated that he then used his Taser against J.B., which allowed the officers to extract J.B. from the vehicle, but that he had to use his Taser a second time after J.B. continued to resist arrest. Harris did not mention that he had punched J.B. In addition, two other officers failed to fully record their use of punches and kicks against B.H.

         The involved officers also filed use-of-force reports. A use-of-force report is an administrative record that the Boynton Beach Police Department uses to compile annual statistics on use-of-force incidents. It is a two-page form on which an officer checks boxes for the general types of force used. The form also instructs that the officer "must" include in his offense report "[a]ll . . . details of the arrest," the circumstances that "led [the officer] to believe force was necessary," and the "[t]ypes of force used and [its] effects." Unlike officer reports, which are the official records that the Boynton Police Department may share with the State Attorney's Office or with the public, use-of-force reports are internal to the Boynton Police Department. Boynton officers are trained that checking a box on the use-of-force report is not a substitute for recording the type of force used in the officer report. Five of the involved officers, including Brown, Harris, and Ryan, filed use-of-force reports that checked a box for "[b]lows with hands/fists/feet and other body parts."

         After Antico returned to work on August 27, he obtained the helicopter video and watched it with Brown. Antico then began reviewing the officer reports that were submitted and validated as complete. He rejected those reports that did not record strikes or kicks against J.B. and B.H. Antico returned Harris's and Ryan's officer reports, allowing them to change their reports to include that they struck J.B. Ryan's amended report also included several new allegations: that J.B. appeared to be reaching for a weapon before Brown used his Taser; that J.B. refused to surrender his hands for cuffing after he was pulled from the vehicle; and that Ryan had then "delivered 3 to 4 knee strikes to [J.B.]'s right thigh." After viewing the video, Brown changed his report to include that he struck J.B. several times with a closed fist after J.B. refused to comply with loud verbal commands to place his hands on the dashboard, and Brown added that he used a Taser after J.B. still refused to comply. Brown continued to omit that he kicked J.B. Antico also returned reports for two other officers to allow them to add that they struck B.H. An analysis of the electronic metadata of the reports-referred to at trial as the "digital audit trail"-revealed that Antico rejected officer reports eleven times in the 29 hours after watching the helicopter video, including rejecting reports by Harris and Ryan several times each.

         After the officers made these changes to their reports, Antico approved and transmitted them to Boynton's chief of police, Jeffrey Katz. After Chief Katz reviewed all the evidence regarding the incident, he referred the matter to state and federal authorities to determine whether the officers violated any laws.

         In February 2015, agents from the Federal Bureau of Investigation interviewed Antico. At that time, both Antico and the Bureau agents were unaware that the reporting system for the police department retained a digital audit trail of the changes that the officers made to their officer reports. During the interview, Antico recalled numerous details of the incident, which he referred to as "the most critical incident [he had] been involved in." For example, his recollection of the details of the high-speed chase was extensive, covering over fifty transcript pages, and included details about the original call from the officer who tried to stop the suspect vehicle, which officers were involved in the pursuit, and the direction and streets the suspect vehicle was traveling on. He also admitted that he had watched the helicopter video with Brown and affirmed that he read every one of his subordinates' reports "[w]ord-for-word."

         Antico's interview also covered the accuracy of his subordinates' officer reports. In responding to questions about what would raise a "red flag" for him about the reports, Antico repeatedly answered that the failure to record the use of strikes would be a serious red flag, one which would warrant being investigated by Internal Affairs. But he stressed that the officer reports did state that the officers had thrown punches and kicks. He failed to mention that the officers' initial completed and validated reports did not disclose that conduct. When asked whether he returned any of the reports for corrections, Antico replied, "I'd have to check to see . . . if I rejected anybody's reports," adding, "I might have rejected a couple." Although he had rejected eleven reports that did not record strikes or kicks against J.B. and B.H., Antico told the agents that he had "never really had an issue with . . . these guys not being accurate in their . . . report writing" and "paint[ing] a picture of what happened." And he recalled that the only statement he should have had a subordinate officer change in his report was a "grammatical error" stating that a suspect's face hit the officer's hand instead of vice versa.

         B. The Prosecution of Brown.

         A grand jury charged Officers Brown, Harris, and Ryan with deprivation of rights under color of law, 18 U.S.C. § 242, and several counts of falsification of records, id. § 1519. In a superseding indictment, the grand jury charged Brown with an additional count for use of a firearm during a crime of violence, id. § 924(c)(1)(A)(i). Later, the district court held a joint trial for Brown, Harris, and Ryan.

         The video of the incident was the government's most important evidence against the officers. The video depicts Brown first disabling the suspect vehicle by ramming it, then exiting his own vehicle and momentarily pausing with his gun drawn and pointed at B.H., and then moving rapidly toward the front passenger door, immediately opening it, and repeatedly kicking and punching J.B.

         Two of the government's witnesses testified about the video. Chief Katz testified that, in his opinion of it, he saw Brown come to the front passenger door, use "some kicks," and then "reach[] into the vehicle and strike[] [J.B.] in the seat." Sergeant Sedrick Aiken, Boynton Beach Police Department's "use-of-force" expert, testified that the video depicts Brown kicking J.B. and punching him while Brown had his pistol in his hand. Aiken added that it did not look like Brown gave J.B. any verbal commands, and he explained that even if Brown did give commands, he did not give J.B. time to comply before he began applying "hard force" of punches and kicks.

         Officer Patrick Monteith, one of the other officers on the scene during the assault, testified that when he reached the suspect vehicle, one person had been dragged out of it but that the officers were still swarming around the vehicle. Monteith stood in front of the vehicle with his rifle aimed at J.B., who was still in the front passenger seat. Monteith's rifle was resting on the windshield itself, and he was perhaps "two [or] three feet" away from J.B. Monteith testified that he could see both of J.B.'s hands throughout the time that he was on the scene, and they were "up, they were blocking, [and] there were no closed fists." J.B. was also "jerking in and out of the vehicle . . . violently one way and then the other way, back and forth." But these movements were not of his "own volition," as he "was being moved" by the officers. Monteith also denied that J.B. ever appeared to be reaching for a weapon. Monteith explained that when he heard Brown beginning to activate his Taser, he observed that J.B. was still buckled into his seat, so J.B. could not have complied with any command to leave the vehicle even if he had wanted to do so. Monteith explained that he called out for someone to unbuckle J.B., after which J.B. was removed from the vehicle.

         The government also elicited testimony about the standards that the Boynton police employ for the use of force. Sergeant Aiken testified that Boynton police officers are trained that when an officer encounters "passive resistance"-which includes "not complying with verbal commands, . . . tak[ing] flight, run[ning] from [officers], protesting, sit[ting], grab[bing], hold[ing on] to a chair, railing or staircase, "-he only may use "soft control," such as "pressure points," "escort procedures," and "escort[s] . . . with come alongs." A passenger who refuses to get out of a car when verbally told to do so is engaging in passive resistance. But if an officer encounters "active resistance"-such as when a subject is "flailing, kicking arms and legs . . . [or] tak[ing] any fighting stance towards the officer"-the officer may use "hard force" to incapacitate the subject. Hard force includes the use of a "[T]aser, baton, bean bag from a bean bag shotgun, punches, if necessary, a punch with the fist to the soft tissue areas of the body." In using hard force, the officer targets "the soft tissue areas, the quadriceps area, calf muscles, shoulder, tricep, bicep area, [and] muscle mass areas." Aiken also testified that Brown had last been trained on the lawful use of force in March 2014, five months before the incident.

         Aiken then opined on whether Brown's use of force was reasonable based on the department's criteria for the use of force. He first explained that using a Taser is not justified if a subject simply refuses to get out of a vehicle after being given three verbal orders to exit. Aiken also read aloud the narrative portion of Brown's officer report from after Brown saw the helicopter video. Aiken affirmed that Brown's description of J.B. as refusing to obey verbal commands was passive resistance and would not justify the force that Brown admitted to using-strikes with a closed fist to the body and the use of a Taser. Aiken also repeatedly testified that, based on the department's criteria for the use of force, it was unreasonable for Brown to punch J.B. with the gun in his hand, to kick him, or to use a Taser against him.

         Aiken also expressed concerns about the reliability of the officer reports filed by the three defendants. Aiken affirmed that the officers had initially omitted many details about the level of force used and the alleged circumstances that justified the use of force in their reports. Aiken explained that there was no justification for Brown to omit from his report that he had struck a passenger with a firearm in his hand and that he kicked him. And Aiken explained that the officers' amended reports-which included new details, such as allegations that

          J.B. appeared to be reaching for a weapon and that he would not show the officers his hands-suggested deception.

         The defense rested without calling witnesses or introducing any evidence. The jury convicted Brown of deprivation of rights under color of law (count 1) and of the use of a firearm in a crime of violence (count 2), but acquitted him of the two counts for falsifying a police record. The jury acquitted Harris and Ryan on all counts.

         Brown moved for a judgment of acquittal notwithstanding the verdict on the grounds of sufficiency of the evidence as to count 1 and the legal sufficiency of count 2. The district court granted the motion as to count 2 but denied it as to count 1. As to count one, the district court determined that the evidence viewed in the light most favorable to the government was sufficient for a reasonable jury to find that Brown's use of hard force, including punches and kicks, was unreasonable when faced with passive resistance. The district court also ruled that a reasonable jury could find that Brown's failure to disclose the extent of his use of force in his officer report and his violation of departmental policy about the use of force established his consciousness of guilt and willfulness.

         Brown also moved for a new trial on the ground that the jury's verdict was against "the weight of the evidence." He later supplemented his motion with "newly discovered evidence"-an enhanced helicopter video purportedly showing him reholstering his weapon before striking J.B.-that was not shown to the jury. The district court instructed Brown to file an amended supplement addressing how the elements for a motion for a new trial based on newly discovered evidence were met. See United States v. Thompson, 422 F.3d 1285, 1294 (11th Cir. 2005) ("When a defendant discovers new evidence after trial that was unknown to the government at the time of trial, a new trial is warranted only if: (1) the evidence was in fact discovered after trial; (2) the defendant exercised due care to discover the evidence; (3) the evidence was not merely cumulative or impeaching; (4) the evidence was material; and (5) the evidence was of such a nature that a new trial would probably produce a different result." (citation and internal quotation marks omitted)). Brown filed a memorandum acknowledging that the video did not constitute "newly discovered evidence" under Federal Rule of Criminal Procedure 33(b)(1), but he argued that the district court should consider it anyway in deciding whether to grant his motion in "the interests of justice." The government replied that Brown could not rely on the enhanced video in his motion for a new trial because he failed to introduce it at trial and that, in any event, the video did not support his contention that he reholstered his weapon.

         The district court denied Brown's motion for a new trial. The district court first concluded that it was limited to evaluating record evidence, which did not include the enhanced video. The district court then observed that Brown had been charged with using several means to assault J.B. other than striking him with his gun in his hand and that the weight of the evidence did not "preponderate[] heavily against a finding" that Brown used unreasonable force through one of the other means. And the district court again ruled that sufficient evidence supported the verdict.

         Using the 2016 edition of the United States Sentencing Guidelines, the probation officer initially calculated Brown's total offense level as 27 based on "aggravated assault" as the underlying offense. See United States Sentencing Guidelines Manual §§ 2A2.2, 2H1.1(a)(1) (Nov. 2016). The Guidelines define aggravated assault as "a felonious assault that involved . . . a dangerous weapon with the intent to cause bodily injury (i.e., not merely to frighten) with that weapon." Id. § 2A2.2 cmt. n.1. The probation officer determined that Brown's actions amounted to aggravated assault based in part on his use of a Taser against J.B. Based on an offense level of 27 and a criminal-history category of I, the probation officer calculated Brown's guideline range to be 70 to 87 months' imprisonment.

         Brown objected to using aggravated assault as the underlying offense. He argued that his use of the Taser did not qualify as aggravated assault because he lacked the intent to cause bodily injury to J.B. The district court sustained the objection on the ground that "[t]here is insufficient evidence to find by a preponderance of the evidence that Brown's intent in using the Taser was to cause bodily injury, rather than to gain control over J.B." As a result, the district court recalculated the guideline range and determined that the total offense level was 16, producing a sentencing range of 21 to 27 months of imprisonment. The district court imposed a downward-variance sentence of three years of probation.

         C. The Prosecution of Antico.

         A grand jury charged Antico with obstruction of justice related to his interview with the Bureau, 18 U.S.C. § 1512(b)(3), and two counts of falsification of records related to his aiding and abetting of the filing of false police reports by Officers Brown and Harris, id. § 1519.

         At trial, the government's evidence about the incident itself and the departmental policies on the use of force was essentially the same as at Brown's trial. The government primarily relied on the video of the incident and testimony by Sergeant Aiken to establish that the officers' actions in assaulting the vehicle's occupants violated Boynton's standards for the use of force.

         Sergeant Aiken and Chief Katz also testified about Boynton's policies for officer reports and use-of-force reports. Their testimony established that an officer must state whatever force he used in both the use-of-force report and the narrative section of the officer report. Sergeant Aiken also affirmed that during the thirteen years he served as training sergeant, he had never heard of an officer not including details about his use of force in his officer report. Katz and Aiken explained that if an officer did omit such details, it would be a cause for formal discipline. Both Katz and Aiken also testified that once a report is "completed" and "validated" by an officer, it is final and is not a draft report. Aiken testified that it would be unusual for a supervisor to review an officer report and send it back multiple times for revisions for a subordinate failing to include important details about his use of force. He stated that, in his ...


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