Nos. 00-2565, 00-3026

FOR THE SEVENTH CIRCUIT

UNITED STATES OF AMERICA,
Appellee

v.

DAVID BROWN and BRUCE TROXEL,
Defendants-Appellants

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

BRIEF FOR THE UNITED STATES

BILL LANN LEE
Assistant Attorney General

JESSICA DUNSAY SILVER
LISA W. EDWARDS
Attorneys
Department of Justice
P.O. Box 66078
Washington, D.C. 20035-6078
(202) 307-9994

TABLE OF CONTENTS

PAGE

STATEMENT OF SUBJECT MATTER AND APPELLATE
JURISDICTION 1

STATEMENT OF THE ISSUES 1

STATEMENT OF THE CASE 2

A. Course Of Proceedings And Disposition Below 2

B. District Court's Ruling On Prior Bad Acts Evidence 6

STATEMENT OF FACTS 8

A. The Assault on Tab Wilhoit 8

B. Evidence Of Defendant Brown's Prior Bad Acts 18

STANDARDS OF REVIEW 20

SUMMARY OF ARGUMENT 21

ARGUMENT:

I. THE DISTRICT COURT DID NOT ABUSE ITS
DISCRETION BY PERMITTING EVIDENCE OF
A PRIOR BAD ACT BY DEFENDANT BROWN
PURSUANT TO FED. R. EVID. 404(b) 22

II. THE DISTRICT COURT'S JURY INSTRUCTIONS,
VIEWED AS A WHOLE, PROVIDED A FAIR AND
ACCURATE SUMMARY OF THE LAW AND DID
NOT IN ANY WAY PREJUDICE DEFENDANTS 30

TABLE OF CONTENTS (continued): PAGE

CONCLUSION 35

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

ii

TABLE OF AUTHORITIES

CASES:

PAGE

Apodaca v. United States, 188 F.2d 932 (10th Cir. 1951) 25

Huddleston v. United States, 485 U.S. 681 (1988) 23

Screws v. United States, 325 U.S. 91 (1945) 25

United States v. Allison, 120 F.3d 71, 74 (7th Cir.), cert. denied, 522 U.S. 987 (1997) 22, 24

United States v. Asher, 178 F.3d 486 (7th Cir.), cert. denied, 120 S. Ct. 359 (1999) 22-23, 24

United States v. Bradley, 196 F.3d 762 (7th Cir. 1999) 24-26, 32, 33

United States v. Chaimson, 760 F.2d 798 (7th Cir. 1985) 28

United States v. Elizondo, 920 F.2d 1308 (7th Cir. 1990) 8

United States v. Ellis, 156 F.3d 493 (3d Cir. 1998) 32

United States v. Goodapple, 958 F.2d 1402 (7th Cir. 1992) 7

United States v. Harrod, 856 F.2d 996 (7th Cir. 1988) 28

United States v. Heath, 188 F.3d 916 (7th Cir. 1999) 20, 22, 24

United States v. Katalinich, 113 F.3d 1475 (7th Cir.), cert. denied, 522 U.S. 905 (1997). 20, 32

United States v. Koon, 34 F.3d 1416 (9th Cir. 1994), aff'd in part, rev'd in part, 518 U.S. 81 (1996) 25

iii

CASES (continued): PAGE

United States v. Kreiser, 15 F.3d 635 (7th Cir. 1994) 7

United States v. Lanzotti, 205 F.3d 951 (7th Cir.), cert. denied, 120 S. Ct. 2746 (2000) 30-31

United States v. Prevatte, 16 F.3d 767 (7th Cir. 1994) 23

United States v. Span, 170 F.3d 798 (7th Cir. 1999) 20, 30

United States v. Studley, 892 F.2d 518 (7th Cir. 1989) 30

United States v. Thibodeaux, 758 F.2d 199 (7th Cir. 1985) 20

United States v. Walker, 25 F.3d 540 (7th Cir.), cert. denied, 513 U.S. 953 (1994) 32

United States v. Wilson, 31 F.3d 510 (7th Cir. 1994) 6, 23, 24

STATUTES:

18 U.S.C. 242 2, 21, 24, 31

18 U.S.C. 924(c)(1) 2

RULES:

Fed. R. Evid. 403 23

Fed. R. Evid. 404(b) 1, 20, 22

iv

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 00-2565, 00-3026

UNITED STATES OF AMERICA,
Appellee

v.

DAVID BROWN and BRUCE TROXEL,
Defendants-Appellants

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA

BRIEF FOR THE UNITED STATES

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

The jurisdictional statement set forth in defendants' brief is complete and correct.

STATEMENT OF THE ISSUES

1. Whether the district court abused its discretion by admitting evidence of a prior bad act to prove intent under Fed. R. Evid. 404(b).

2. Whether the district court's instructions provided a fair and accurate summary of the law.

STATEMENT OF THE CASE

A. Course Of Proceedings And Disposition Below

Defendants David Brown and Bruce Troxel were indicted by a federal grand jury on April 22, 1999 (R. 1). (1) Count 1 of the indictment charged defendants with willfully assaulting Tab Wilhoit resulting in bodily injury, and threatening him with a firearm, a dangerous weapon, and thus depriving him of the right to be free from intentional use of unreasonable force by one acting under color of law in violation of 18 U.S.C. 242 and 2 (R. 1). Count 2 charged defendants with knowingly using and carrying firearms during a crime of violence in violation of 18 U.S.C. 924(c)(1) and 2 (R. 1).

On May 28, 1999, prior to trial, defendant Brown moved in limine to exclude as evidence a physical altercation between defendant Brown and Jill Carda (R. 21). On June 4, 1999, the United States responded that defendant Brown's motion in limine be denied as premature in that the United States had not given notice of its intent to offer such evidence, and that otherwise it would provide reasonable notice in advance of trial of its intent to use the evidence (R. 27). On August 5, 1999, the district court granted defendant's motion in limine with respect to the "Jill Carda incident," and ordered that the United States not "introduce any evidence during its case in chief * * * nor attempt to convey to the jury in any manner, directly or indirectly, any evidence concerning [this] item[] without first obtaining relief from this ruling" (R. 36). The United States filed its trial brief on October 28, 1999, and stated its intent to seek to use evidence of defendant Brown's prior bad acts under Rule 404(b) to prove an intent to commit the offense charged in the indictment (R. 42). The United States' trial brief referenced the government's intent to introduce evidence related to defendant Brown's beating of Jill Carda (R. 42, p. 8). Defendant Brown renewed his motion in limine to exclude evidence of the Jill Carda incident (R. 47). On November 8, 1999, the district court ruled that defendant Brown's motion in limine with respect to evidence related to defendant Brown's beating of Jill Carda was moot because "the court's prior order in limine remains in effect" (R. 49).

On February 22, 2000, the United States moved for relief from the district court's November 8, 1999, order and sought admission of evidence of defendant Brown's prior bad acts under Rule 404(b) (R. 54, 55). The trial began on March 13, 2000 (R. 74).

After convening a jury, the district court ruled on various motions filed by the parties (Tr. Vol. 1 at 112). With respect to evidence relating to defendant Brown's prior bad acts, the district court held that the evidence was admissible to prove defendant Brown's intent to commit the offense for which he was charged in the indictment, and that admission of that evidence was not substantially outweighed by the danger of unfair prejudice (Tr. Vol. 1 at 139-142). The district court stated that once testimony regarding any of the prior bad acts is received into evidence, that it would give the jury a limiting instruction on the proper use of the evidence (Tr. Vol. 1 at 142-143).

During the trial, the United States called Jill Carda to testify about an incident involving her and defendant Brown (Tr. Vol. 2 at 190). Counsel for defendant Brown objected to the testimony, and the district court denied the objection (Tr. Vol. 2 at 191-192). Prior to her testimony, the district court instructed the jury that the evidence provided by Carda should be considered only to assess defendant Brown's intent to commit the offense for which is he charged in this case (Tr. Vol. 2 at 190-191). The district court also instructed the jury that the evidence of defendant Brown's acts is not evidence against defendant Troxel and should not be considered for any purpose against Troxel (Tr. Vol. at 191). Over defendants' objections, Jason Hill, an eyewitness to defendant Brown's beating of Jill Carda, testified for the government about the incident (Tr. Vol. 2 at 213-214). Prior to Hill's testimony, the district court gave the same limiting instruction to the jury (Tr. Vol. 2 at 212-213).

At the close of defendants' case, the district court held a conference with the United States and defendants Brown and Troxel on the jury instructions (Tr. Vol. 4 at 120). Defendants objected to Court Instruction 21, and the district court denied the objection (Tr. Vol. 4 at 136, 145). Defendants also objected to the district court's failure to give defendants' proposed jury instruction number 9, and defendants' supplemental proposed jury instruction numbers 12, 13, and 14. The district court denied the objections, ruling that defendants' instruction number 9 was adequately covered by the court's instruction number 20, and that supplemental jury instruction numbers 12, 13, and 14 were adequately covered by the court's instruction Number 21 (Tr. Vol. 4 at 146-147).

On March 21, 2000, the jury found defendants Brown and Troxel guilty on both counts of the indictment (Tr. Vol. 5 at 103-104; R. 80, 81, 82). On June 6, 2000, defendant Brown was sentenced to 130 months imprisonment and ordered to pay special assessments totaling $200 (Def. App. 1; Tr. 30 (June 6, 2000)). Defendant Brown's sentence consists of a term of 70 months imprisonment on Count 1, and a term of 60 months imprisonment on Count 2 to be served consecutively to the term imposed on Count 1. On July 27, 2000, defendant Troxel was sentenced to 123 months imprisonment and ordered to pay special assessments totaling $200 (Def. App. 7; Tr. 56 (July 27, 2000)). Defendant Troxel's sentence consists of a term of 63 months imprisonment on Count 1, and a term of 60 months on Count 2 to be served consecutively to the term imposed on Count 1. Defendants remain in custody pending appeal of their convictions.

B. District Court's Ruling On Prior Bad Acts Evidence

In ruling on defendants' motion to suppress evidence of the Jill Carda incident, the district court applied the Seventh Circuit's four-part test set out in United States v. Wilson, 31 F.3d 510, 514-515 (7th Cir. 1994) for admission of prior bad acts evidence (Tr. Vol. 1 at 139-140). The district court engaged in a detailed analysis of each element of the test.

The district court determined that the evidence of defendant Brown's prior bad acts satisfied the first prong because the evidence "go[es] to [d]efendant Brown's intent to commit the crime charged" and not to defendant Brown's "propensity to commit the crime" (Tr. Vol. 1 at 140). The district court determined that the evidence satisfied the second prong because the bad acts were "similar enough and close in time to be relevant to the matter in issue" (Tr. Vol. 1 at 140). Specifically, the district court found that the Jill Carda incident, "which occurred * * * one year prior to the event charged in the instant case [is] close enough in time to be relevant" (Tr. Vol. at 140). (2) The district court determined that the evidence satisfied the third prong of the test because it was "sufficient to support a jury finding that the [d]efendant committed the similar act" (Tr. Vol. 1 at 140). The district court observed that this Court has stated that "the prior acts need not be duplicates of the one for which the [d]efendant is now being tried, but rather that the prior events have sufficient points in common" (Tr. Vol. 1 at 141, citing United States v. Elizondo, 920 F.2d 1308, 1320 (7th Cir. 1990)). Rejecting defendants' distinction that "these prior incidents had to do with 'girly' issues, whereas the incident in this case involves a male truck driver" (Tr. Vol. 1 at 141), it concluded that "th[is] prior incident[] [is] similar enough to be admissible under the Seventh Circuit standard" (Tr. Vol. 1 at 141). Finally, the district court determined that the "probative value of the evidence is not substantially ouweighed by the danger of unfair prejudice," and thus the evidence satisfied the fourth prong of the test (Tr. Vol. 1 at 141-142). The district court observed that while "relevant evidence is inherently prejudicial" the "Rules of Evidence are not intended to exclude relevant evidence" (Tr. Vol. 1 at 142). The district court stated that "rather the relevant inquiry is whether any unfair prejudice from the evidence substantially outweighs its probative value (Tr. Vol. 1 at 142). The district court concluded that any "unfair prejudice which may result from admitting evidence [of] * * * [the] Carda [incident] * * * [is] substantially outweigh[ed] [by its] probative value" (Tr. Vol. 1 at 142).

STATEMENT OF FACTS

A. The Assault On Tab Wilhoit

The Caddy Shack Lounge is a nude dancing bar and lounge located in Gary, Indiana (Tr. Vol. 1 at 180-181). Defendants Brown and Troxel frequented the lounge, and defendant Brown was paid by the lounge owner to work as a "bouncer" or security guard (Tr. Vol. 1 at 182). Defendant Brown often wore his Gary City Police uniform to the bar on the nights that he worked at the lounge, and many patrons of the lounge recognized defendant Brown as a police officer (Tr. Vol. 1 at 183, 195).

The lounge is located next to D&W Storage and Transfer (Gov. Exhs. 6a, 6b, 6c). D&W Storage and Transfer is a facility where truck drivers acquire and drop off coiled steel that they haul in their trucks (Tr. Vol. 1 at 183). During any eight-hour shift, 20-50 haulers come to the transfer station to pick up and deliver coiled steel (Tr. Vol. 1 at 183-184). Truckers frequently stay in the D&W Transfer parking lot overnight to wait for a next morning pick up, take care of problems with their trucks, or just to sleep (Tr. Vol. 1 at 184). Some nighttime criminal activity, such as prostitution and drug solicitation, occurs on the parking lot outside of the D&W Transfer station (Tr. Vol. 1 at 198).

On July 14, 1998, truck driver Tab Wilhoit arrived at D&W Transfer from East Chicago, Illinois to deliver steel coils (Tr. Vol. 1 at 215). Wilhoit had been hauling steel coil for about 16 years (Tr. Vol. 1 at 221). That day Wilhoit unloaded three coils at about 4:00 p.m. at D&W Transfer, then returned to Inland Steel in East Chicago to pick up the last load (Tr. Vol. 1 at 213-214). Wilhoit hauls coil to and from D&W Transfer about 20 to 30 times a year (Tr. Vol. 1 at 215). On July 14, he returned to D&W Transfer at about 9:00 in the evening with his final load (Tr. Vol. 1 at 221-222). Wilhoit backed his tractor under his trailer, locking the tractor and trailor together (Tr. Vol. 1 at 221-222). Wilhoit had not cranked up the landing gear and dollies on his trailer, so once he locked the trailer and tractor together he could not move the truck (Tr. Vol. 1 at 222). Wilhoit then fell asleep behind a curtain in the sleeper compartment of his truck (Tr. Vol. 1 at 223). He testified that he usually sleeps in his truck three to four times each week, but had never before slept at the D&W Transfer lot (Tr. Vol. 1 at 223). Wilhoit testified that he was unaware of any prostitution or drug solicitation in the parking lot (Tr. Vol. 1 at 225).

Wilhoit awoke when he felt his truck rock (Tr. Vol. 1 at 226). He looked through the curtain and saw a man with his head and hand through the truck window (Tr. Vol. 1 at 226). Wilhoit asked the man what he wanted, and the man asked for money (Tr. Vol. 1 at 227). Wilhoit picked up two one-dollar bills on the floor board of his truck and gave it to the man, "hoping to get rid of him" (Tr. Vol. 1 at 227). Wilhoit testified that the man said "something about drugs" but Wilhoit told the man "just get out of here because I got protection" (Tr. Vol. 1 at 228). When the man left, Wilhoit got in the driver's seat of his truck and got out his pocket knife so that he could protect himself (Tr. Vol. 1 at 228-229). Wilhoit started putting on his shoes so that he could move his truck (Tr. Vol. 1 at 230). Wilhoit testified that it was about 2:00 a.m., and the light that he had parked next to in the parking lot had gone off (Tr. Vol. 1 at 230). Wilhoit stated that he had not "intend[ed] to sleep that long" (Tr. Vol. 1 at 230).

That same evening, defendants Brown and Troxel were at the Caddy Shack Lounge (Tr. Vol. 2 at 102-104). Defendant Brown was drinking with Thomas Stigerts (Tr. Vol. 2 at 103). Clent Gilbert, nicknamed Boo, approached defendants and Stigerts, and told them that a man on a bicycle in the parking lot was approaching trucks (Tr. Vol. 2 at 104, 107). The four men walked out of the lounge and went outside to the parking lot (Tr. Vol. 2 at 106-107). They stopped a man on a bicycle and questioned him about what he was doing (Tr. Vol. 2 at 108). The man stated that he was trying to get money to buy drugs (Tr. Vol. 2 at 108). Defendant Brown searched the bicyclist and found $2 on him (Tr. Vol. 2 at 109-110). The bicyclist told the four men that a trucker gave him the money and pointed to Wilhoit's truck (Tr. Vol. 2 at 110-111). Just then the truck's headlights came on (Tr. Vol. 2 at 112).

Wilhoit saw four men approaching his truck (Tr. Vol. 1 at 231). Defendant Troxel approached the driver's side of Wilhoit's truck, pounded on the door, and told Wilhoit to "open the mother fucking door right now" (Tr. Vol. 1 at 232). Defendant Troxel was not wearing a police uniform, and was casually dressed (Tr. Vol. 1 at 231-233; Tr. Vol. 4 at 56). Wilhoit told defendant Troxel "no," and refused to open the door (Tr. Vol. 1 at 231-232). Troxel flashed his police badge to Wilhoit and continued to order him to open the door of his truck (Tr. Vol. 1 at 232). Wilhoit testified that he was scared and thought that he was going to be robbed; he asked defendant Troxel where was his police car (Tr. Vol. 1 at 234). When Wilhoit continued to refuse to open the door, defendant Troxel jumped on the side step of the truck, reached through the window grabbing Wilhoit's gold chain, and twisted the chain around Wilhoit's neck choking him (Tr. Vol. 1 at 234-235). With his other hand, defendant Troxel grabbed Wilhoit's hair and tried to pull Wilhoit's head through a 6-8 inch opening of the truck window (Tr. Vol. 1 at 236). Wilhoit used his pocketknife and stabbed defendant Troxel five or six times (Tr. Vol. 1 at 236; Gov. Exh. 10). Wilhoit's chain broke, and his shirt was ripped off of him (Tr. Vol. 1 at 236; Gov. Exh. 3e). Defendant Troxel returned to the other men, and told them, including defendant Brown, that he had been stabbed by the trucker (Tr. Vol. 2 at 114-115).

Defendant Brown approached Wilhoit's truck and tried to open the door (Tr. Vol. 2 at 115). Defendant Brown jumped on the hood of Wilhoit's truck, pulled out a gun, put it to the windshield of the truck and pointed it at Wilhoit (Tr. Vol. 1 at 238; Gov. Exh. 3d). Wilhoit saw that defendant Brown was wearing a blue jumpsuit with "Police" written on the back (Tr. Vol. 1 at 238, 274; Tr. Vol. 4 at 56). Wilhoit grabbed his CB radio, and yelled for someone to call the police because he was being robbed (Tr. Vol. 1 at 239; Tr. Vol. 2 at 117). As Wilhoit tried calling for the police, defendant Brown yelled "I am the fucking police. Unlock the door" (Tr. Vol. 2 at 117). Defendant Brown then kicked in the windshield, shattering the glass (Tr. Vol. 2 at 119; Tr. Vol. 1 at 239; Gov. Exhs. 3a, 3b, 3c, 4). At that point Wilhoit was dragged out of the truck (Tr. Vol. 1 at 241- 242). Wilhoit testified that he was not sure that he was "dealing with [the] police" (Tr. Vol. 1 at 242).

After being dragged from the truck, defendant Troxel struck Wilhoit in the face with an object, possibly a pistol (Tr. Vol. 1 at 243). Wilhoit was thrown to the ground, and repeatedly punched and kicked (Tr. Vol. 1 at 243). Wilhoit got up and tried to defend himself, but was tackled, thrown back down to the ground, and kicked and hit again (Tr. Vol. 1 at 243-244). Wilhoit testified that he saw defendants' weapons, and that after he was thrown to the ground the second time defendants put a gun to his head and told him that if he told anybody about the incident they would "hunt [him] down and kill [him] [and] kill [his] family" (Tr. Vol. 1 at 245). Wilhoit testified that defendants told him that they should "kill [him now]" and throw him "out back of the Transfer Yard" (Tr. Vol. 1 at 245). Defendants told Wilhoit that they "could do it * * * and get away with it" because Wilhoit was a "worthless truck driver [and n]obody would even look for [him]" (Tr. Vol. 1 at 245). Wilhoit, still laying on the ground, said "Please don't kill me. I have a family" (Tr. Vol. 1 at 245).

Defendants Brown and Troxel accused Wilhoit of buying drugs and ransacked his truck (Tr. Vol. 1 at 245-246). Defendants took Wilhoit's wallet and his Michigan driver's license, and told him that "no matter where [he] lived in Michigan, they would hunt [him] down and kill [him] * * * [i]f [he] reported this incident" (Tr. Vol. 1 at 247; Tr. Vol. 2 at 51). Defendants then asked Wilhoit for his address (Tr. Vol. 1 at 247). Wilhoit gave them his current address, but his prior address was reflected on his driver's license (Tr. Vol. 1 at 247). Defendants told Wilhoit that he was lying and took a hammer from the truck and used it to beat against the side of the truck (Tr. Vol. 1 at 248). The beating caused damage to the truck, including to the truck's side grab rails (Tr. Vol. 1 at 249-250; Gov. Exhs. 5, 13). Defendants took Wilhoit's driver's license and told him again that if he told anyone about the incident they would kill him and his family (Tr. Vol. 1 at 251).

Defendants Brown and Troxel and the other two men walked away (Tr. Vol. 1 at 253). Wilhoit was still face down on the ground (Tr. Vol. 1 at 253). Wilhoit testified that defendants smelled of liquor during the incident (Tr. Vol. 1 at 253). Defendants never told Wilhoit that he was under arrest, nor did they call for back up (Tr. Vol. 1 at 253). Wilhoit got up and proceeded to his truck, when he saw a wallet on the ground (Tr. Vol. 1 at 253-254). He picked up the wallet, then cranked up the dollies and air lines to his trailer, and sped off in his truck down Route 20 (Tr. Vol. 1 at 254). Wilhoit drove to I-94 east out of Indiana and into the State of Michigan (Tr. Vol. 1 at 255). He proceeded to the first exit in Michigan and into a truck stop where he asked a security guard to call the Michigan State police (Tr. Vol. 1 at 255-256).

The Michgan State and local police arrived at the truckstop shortly thereafter (Tr. Vol. 1 at 261-262; Tr. Vol. 2 at 32). Wilhoit was very upset with scrapes and cuts on his face, and wearing a partially ripped shirt with bloodstains on it (Tr. Vol. 2 at 34, 46). The wallet that Wilhoit picked up from the ground at the transfer station was defendant Troxel's badge and wallet (Tr. Vol. 2 at 52; Tr. Vol. 4 at 31; Gov. Exh. 7). Wilhoit told police authorities in Michigan about the beating (Tr. Vol. 2 at 49-51). The Michigan police called the City of Gary police to report the incident, and informed the Gary dispatcher that one of their officers, defendant Troxel, had been stabbed (Tr. Vol. 2 at 77-78). The Gary dispatcher responded that there had been no reports of an officer being stabbed that night (Tr. Vol. 2 at 78). The Gary dispatcher called defendant Troxel at his home (Tr. Vol. 2 at 78). Troxel told the dispatcher that he had been stabbed (Tr. Vol. 2 at 79). The Gary dispatcher told defendant Troxel that Michigan police authorities had his wallet (Tr. Vol. 2 at 80). Defendant Troxel told the Gary dispatcher that the incident was "no big deal" and that he was "okay" (Tr. Vol. 2 at 80; Tr. Vol. 4 at 52-53). Defendant Troxel asked the Gary dispatcher to arrange to have his wallet mailed back to him (Tr. Vol. 2 at 80). The Gary dispatcher asked the Michigan police authorities to mail the wallet to defendant Troxel, but they refused (Tr. Vol. 2 at 80).

Later that morning, Wilhoit went to the hospital where he was treated for facial injuries (including a broken nose), back injuries, and bruises to his arm (Tr. Vol. 1 at 264-265; Tr. Vol. 2 at 18; Gov. Exhs. 1a, 1b, 1c, 1d, 1e, 2). Wilhoit testified that since the attack he has had problems with depression (Tr. Vol. 1 at 266).

Gary Police Chief John Roby testified about police procedures (Tr. Vol. 2 at 222). He testified that Gary police officers attend 12 to 14 weeks of training at the law enforcement academy prior to duty and are retrained every year (Tr. Vol. 2 at 224). Roby testified that officers are permitted to hold second jobs, wear their uniforms at second jobs, and can perform police duties and arrest a person while working a second job (Tr. Vol. 2 at 240-241). Roby testified that when an officer identifies himself as a Gary police officer, shows his badge, or displays his gun, he is considered to be acting as a police officer for the City of Gary (Tr. Vol. 2 at 242). Roby testified that, under the department's rules, if an officer seizes property, destroys property, uses physical force or injures a civilian in the course of police procedures, or if an officer is injured in the course of performing a police function, that the officer is required to report the incident to the police department (Tr. Vol. 2 at 248-252; Gov. Exhs. 14, 15a, 15b, and 16). No report was filed about the incident involving defendants Brown and Troxel and Tab Wilhoit (Tr. Vol. 2 at 248-252).

B. Evidence Of Defendant Brown's Prior Bad Acts

At trial, Jill Carda testified that she was a dancer at the Caddy Shack Lounge (Tr. Vol. 2 at 194). Carda recognized defendant Brown because Brown worked at the lounge at least five nights a week and was paid by the owners (Tr. Vol. 2 at 199-200). Carda testified that Brown wore either his Gary police uniform or plain clothes to his job at the lounge, and that she has seen Brown carrying his weapon (Tr. Vol. 2 at 200-201).

Carda testified that in the summer of 1997, she was beaten by defendant Brown (Tr. Vol. 2 at 201-203). Carda stated that one evening at the Caddy Shack Lounge, defendant Brown pulled a chair out from under her causing her to fall onto the floor on her behind (Tr. Vol. 2 at 201). Carda got up from the floor, and saw that everybody in the lounge was laughing at her (Tr. Vol. 2 at 202). Carda saw defendant Brown and his friend hiding behind the pool table laughing (Tr. Vol. 2 at 202). She went to a back room to change her clothes (Tr. Vol. 2 at 202, 207). When she returned to the lounge, she approached Brown, grabbed his arm, "called him a few choice words" and asked why he did that to her (Tr. Vol. 2 at 202, 208). Carda testified that defendant Brown immediately "grabbed" her and "threw [her] into a wall" (Tr. Vol. 2 at 202). Carda stated that she hit an aspirin machine on the corner of the wall and that she also hit another woman who was behind her (Tr. Vol. 2 at 203). Carda testified that after hitting the wall, defendant Brown grabbed her again and "body slammed [her] [to] the ground" (Tr. Vol. 2 at 203). She stated that defendant Brown then "took his foot and he shoved it in the nape of [her] neck, and pulled [her] arm at the same time to where it * * * cut [off] * * * [her] breathing" (Tr. Vol. 2 at 203). Carda testified that defendant Brown then asked the owner of the lounge whether he wanted Brown to "take [her] out back and finish [her] off" (Tr. Vol. 2 at 203). Carda testified that the owner said no, and to let her up (Tr. Vol. 2 at 203). When defendant Brown let her go, she ran to a back room (Tr. Vol. 2 at 203-204). Carda testified that the incident scared her and that she left the lounge "immediately"(Tr. Vol. 2 at 204).

At trial, Jason Hill testified that he was at the Caddy Shack Lounge the night that Carda was shoved and thrown to the floor by defendant Brown (Tr. Vol. 2 at 216). Hill testified that he saw defendant Brown pull Carda's chair out from under her and cause her to fall onto the floor (Tr. Vol. 2 at 216, 217-218, 220), that he saw defendant Brown "hit" Carda, "thr[o]w her on the ground," and "step[] on her throat" (Tr. Vol. 2 at 216, 220). Hill stated that he saw Carda about two days after the incident and that her chest and chin were bruised (Tr. Vol. 2 at 216). Hill testified that he understood that defendant Brown worked at the Caddy Shack Lounge, and had seen Brown in his uniform with his badge, belt, and weapon (Tr. Vol. 2 at 217).

STANDARDS OF REVIEW

The district court's admission of evidence pertaining to defendant Brown's beating of Jill Carda under Fed. R. Evid. 404(b) should be reviewed for abuse of discretion. United States v. Heath, 188 F.3d 916, 920 (7th Cir. 1999). The district court's charge to the jury is reviewed to determine whether the instructions "as a whole * * * represent accurate statements of the law and are supported by the record." United States v. Span, 170 F.3d 798, 801 (7th Cir. 1999); United States v. Thibodeaux, 758 F.2d 199, 202 (7th Cir. 1985). A district court's denial of a proposed instruction that is properly preserved for review on appeal should be reviewed to determine whether defendant was prejudiced by the denial. United States v. Katalinich, 113 F.3d 1475, 1482 (7th Cir.), cert. denied, 522 U.S. 905 (1997).

SUMMARY OF ARGUMENT

The district court acted well within its discretion in admitting evidence of defendant Brown's beating of Jill Carda under Fed. R. Evid. 404(b). Applying the four-prong test for admitting prior bad acts under Rule 404(b), the district court concluded that the evidence was relevant in determining defendant Brown's intent to commit the offense charged in the indictment and did not unfairly prejudice defendant. Defendants' claims on appeal that the evidence is irrelevant and not similar to the incident involving victim Tab Wilhoit are without merit. The evidence is relevant to the crime that he is charged of in the indictment in this case because it provides further proof of defendant Brown's intent to use his police authority to exert excessive force on his victims and cause them injury. The evidence is also relevant because it shows defendant Brown's intent to retaliate against his victims when they confront him. Any prejudicial effect of this evidence was mitigated by the cautionary instructions the district court gave to the jury prior to admitting the other acts evidence, and again at the close of the trial.

The district court's jury instructions provided a fair and accurate summary of the law and informed the jury correctly about the elements of a violation of 18 U.S.C. 242 for use of excessive force by persons acting under color of law. The district court's decision not to give defendants' proposed jury instructions did not prejudice defendants because the content of these instructions was reflected in the instructions given by the court.

ARGUMENT

I

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY
PERMITTING EVIDENCE OF A PRIOR BAD ACT BY
DEFENDANT BROWN PURSUANT TO FED. R. EVID. 404(b)

The admission of evidence of prior bad acts pursuant to Rule 404(b) is an evidentiary ruling that is entitled to substantial deference. United States v. Heath, 188 F.3d 916, 920 (7th Cir. 1999). Under this "deferential standard" this Court should ask "whether the district court made a decision that was within the range of options from which we might expect a reasonable trial jurist to choose under the circumstances." Heath, 188 F.3d at 920 (quoting United States v. Allison, 120 F.3d 71, 74 (7th Cir.), cert. denied, 522 U.S. 987 (1997)). "An appellate court will not second-guess the decision of the district court when that decision was made in conformity with established legal principles." United States v. Asher, 178 F.3d 486, 492 (7th Cir. 1999) (citing United States v. Prevatte, 16 F.3d 767, 774 (7th Cir. 1994)), cert. denied, 120 S. Ct. 359 (1999).

Rule 404(b) permits the admission of evidence of other crimes, wrongs, or acts to prove intent to commit the crime for which a defendant is charged. "The threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of a material issue other than character." Huddleston v. United States, 485 U.S. 681, 686 (1988). In Huddleston the Supreme Court explained that Rule 404(b) evidence is admissible only if it is relevant, and "similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor." Id. at 689. Relevant evidence may be excluded, however, if its "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed. R. Evid. 403.

This Court has "combined the requirements of Rule 404(b) and Rule 403 to create a four-prong test that governs the admission of prior bad acts evidence." Asher, 178 F.3d at 492. The "admissibility of evidence under Rule 404(b) is governed by this well-established four-part test." Ibid. Evidence of prior crimes may be admitted when:

(1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

Ibid; see also Heath, 188 F.3d at 921; Allison, 120 F.3d at 74; United States v. Wilson, 31 F.3d 510, 514-515 (7th Cir. 1994).

1. Despite the district court's detailed analysis of the facts under the four-prong test for assessing Rule 404(b) evidence (pp. 6-8, supra), defendants argue (Br. 13) that evidence of defendant Brown's beating of Jill Carda was not relevant to the crime for which he was being charged. Relying on United States v. Bradley, 196 F.3d 762, 770 (7th Cir. 1999), defendants appear to argue (Br. 15) that a violation of 18 U.S.C. 242 is not a specific intent crime from the standpoint of requiring proof that defendant acted with an intent to deprive his victim of a constitutional right (Defendants' brief states that "in the context of [Section] 242, willfullness is not a state of mind in which the defendant specifically intends the consequences of his or her acts."). Defendant Brown also states (Br. 14) that he did not dispute that he acted with the intent to deprive Tab Wilhoit of a federal right.

As a preliminary matter, and contrary to defendants' claims, 18 U.S.C. 242 is a specific intent statute. Section 242 prohibits persons acting "under color of any law" from "willfully" subjecting another person "to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States." In the context of Section 242, the element of "willfulness" requires that defendant "intend to commit the unconstitutional act without necessarily intending to do that act for the specific purpose of depriving another of a constitutional right." Bradley, 196 F.3d at 770 (emphasis added); see also Screws v. United States, 325 U.S. 91 (1945); Apodaca v. United States, 188 F.2d 932, 937-938 (10th Cir. 1951); United States v. Koon, 34 F.3d 1416, 1449 (9th Cir. 1994), aff'd in part, rev'd in part, 518 U.S. 81 (1996). "In other words, to act 'willfully' in the [Section] 242 sense, the defendant must intend to commit an act that results in the deprivation of an established constitutional right as a reasonable person would have understood that right." Bradley, 196 F.3d at 770 (emphasis added). Because "intent" is an element of a violation of Section 242, proof tending to show defendant's intent is relevant. The district court thus did not abuse its discretion by admitting similar evidence of prior acts showing defendant Brown's intent to use excessive force in carrying out his police duties.

Defendant Brown argues (Br. 14) that he lacked any specific intent to commit the crimes for which he was charged because he disputes even striking Tab Wilhoit. Defendant Brown's claim that he did not hit Wilhoit during the incident, however, should be given little weight in view of victim Wilhoit's extensive testimony to the contrary, medical evidence, and exhibits showing that Wilhoit suffered significant injury as a result of the incident (p. 17, supra).

2. Defendants argue (Br. 16) that the circumstances surrounding the Jill Carda beating are dissimilar from the acts that are the subject of this prosecution. The evidence at trial showed that defendant Brown participated in Tab Wilhoit's beating while serving as a security guard at the Caddy Shack Lounge. After pulling Wilhoit out of his truck, defendant Brown threw Wilhoit to the ground and told Wilhoit, among other things, that they should just "kill [him now]" and throw his body to the "back of the Transfer Yard (see p. 14, supra).

Carda testified that she knew that defendant Brown was a police officer and that he worked at the lounge at least five nights a week as a security guard or bouncer (see p. 18, supra). Carda also testified that defendant Brown wore his police uniform to the lounge when he worked, as well as plain clothes, and that she had seen him carrying his weapon (see p. 18, supra). The evidence shows that, similar to the beating of Wilhoit, Brown threw Carda against the wall at the Caddy Shack Lounge, and then to the floor (see pp. 18-19, supra). He then shoved Carda to the ground, held her arms backwards, and put his foot on the nape of her neck (see p. 19, supra). Defendant Brown then asked the owner of the Caddy Shack Lounge whether he should take her "out back" and "finish [her] off" (see p. 19, supra). Indeed, the similarity of these incidences shows that defendant Brown on more than one occasion used his police authority in the context of working a second job as a bouncer or security guard at the Caddy Shack Lounge to physically beat his victims, throw them to the ground, then threaten them by telling them that he should "kill" or "finish" them off. Both of these assaults show defendant Brown's intent to use his police authority to exert excessive force on his victims to fulfill his role as the security guard for the lounge.

These assaults are also similar and relevant to establishing intent because they show that when defendant Brown has been confronted by an individual at or near the Caddy Shack Lounge, he has used his police authority in retaliation against that individual resulting in physical abuse. When Wilhoit refused to get out of his truck, defendant Brown responded by brandishing his gun and kicking in the windshield of the truck (see p. 13, supra). When Wilhoit was dragged out of the truck, he was beaten and threatened by defendant Brown (see p. 13-14, supra). Brown then used a hammer and caused further damage to the truck when Wilhoit gave what Brown believed to be an incorrect address (see p. 15, supra). With respect to Carda, defendant Brown beat and threatened her when she confronted him about pulling her chair out from under her causing her to fall on the floor (see pp. 18-19, supra).

The evidence of defendant Brown's beating of Jill Carda is also relevant since it occurred within a year of defendant Brown's beating of Wilhoit, and thus is sufficiently proximate in time to support admission of that evidence. See United States v. Harrod, 856 F.2d 996, 1002 (7th Cir. 1988) (five year old convictions admissible under Rule 404(b) because of their close proximity to the charged offense); United States v. Chaimson, 760 F.2d 798, 807 (7th Cir. 1985) (similar acts committed five years before charged offense admissible under Rule 404(b)).

3. Last, defendants argue (Br. 16) that the evidence of the Jill Carda incident "induced" the jury to decide the case on the "character and predisposition of Brown, rather than on the evidence presented." This argument is wholly without merit. The district court, with the concurrence of counsel for the United States and defendants, gave a cautionary instruction that the evidence can only be considered to assess Brown's intent to commit the offense for which he is charged in the indictment, and not his propensity to commit the crime (Tr. Vol. 1 at 143; see pp. 4-5, supra). The district court also granted defendant Troxel's request that the jury be instructed that this evidence should not be used against Troxel (Tr. Vol. 1 at 143-144; see pp. 4-5, supra). Prior to Jill Carda's testimony, the district court instructed the jury as follows:

Ladies and gentlemen you're about to hear evidence from the next witness of acts of the Defendant David Brown other than those charged in the indictment in this case. You may consider this evidence only on the question of Defendant David Brown's intent during the incident for which he is charged in this case. You should consider this evidence only for this very limited purpose. In addition, evidence of these acts of Defendant David Brown is not evidence of any kind against Defendant Bruce Troxel, and should not be considered by you for any purpose against Defendant Bruce Troxel.

(Tr. Vol. 2 at 190-191). The same limiting instruction was given just prior to the admission of Jason Hill's testimony (Tr. Vol. 2 at 212-213), and then again at the end of the evidentiary portion of the trial when the district court instructed the jury on the law for reaching a verdict in the case (Tr. Vol. 5 at 80, 84).

Any prejudicial effect of Carda's and Hill's testimony was "limited since the court gave clear and appropriate cautionary instructions to the jury." United States v. Studley, 892 F.2d 518, 528 (7th Cir. 1989). The district court's limiting instruction appropriately informed the jury that the evidence of other acts should be used only on the question of defendant Brown's "intent" to commit the offense charged in the indictment in this case. Defendants do not present any evidence to demonstrate that the evidence may have been used for any inappropriate purpose. This Court must make "the crucial and valid assumption [that] the jurors carefully follow instructions given them by the court." Studley, 892 F.2d at 528 (quoting United States v. Shukitis, 877 F.2d 1322, 1329 (7th Cir. 1989)). Thus the district court did not abuse its discretion by admitting evidence of defendant Brown's beating of Jill Carda.

II

THE DISTRICT COURT'S JURY INSTRUCTIONS, VIEWED
AS A WHOLE, PROVIDED A FAIR AND ACCURATE
SUMMARY OF THE LAW AND DID NOT IN ANY WAY
PREJUDICE DEFENDANTS

The trial court's jury instructions should be reviewed with deference, analyzing them as a whole to determine if they accurately state the law. United States v. Span, 170 F.3d 798, 801 (7th Cir. 1999). "If the instructions are adequately supported by the record and are fair and accurate summaries of the law, the instructions will not be disturbed on appeal." United States v. Lanzotti, 205 F.3d 951, 956 (7th Cir.), cert. denied, 120 S. Ct. 2746 (2000). In this case, the instructions, viewed as a whole, clearly informed the jury about the impermissible use of excessive force by persons acting under color of law in violation of 18 U.S.C. 242.

1. Defendants argue (Br. 18) that the jury instructions were insufficient because the instructions "failed to inform the jury that the excessive force analysis must be conducted from the perspective of the officers at the time of the unfolding events." Defendants argue (Br. 19-20) that the jury should have been instructed that the reasonableness of their use of force should be "judged from the perspective of a reasonable police officer who is confronted with the circumstances * * * at the moment the force was used," and that their proposed jury instruction numbers 9 and 12 should instead have been given.

Defendants' proposed instruction numbers 9 and 12 contain language on the standards for the jury to assess defendants' intent to deprive Wilhoit of a constitutional right, the reasonableness of defendants' actions, and whether any force used was excessive. These instructions, however, are already subsumed in the instructions provided by the district court to the jury (see U.S. Supp. App. Tab 3 at 85-92). A defendant is not entitled to a jury instruction of his own choosing. United States v. Ellis, 156 F.3d 493, 498 n.7 (3d Cir. 1998). District courts have "substantial discretion in wording instructions, and when the instructions as a whole treat a case fairly and accurately, [this Court] will not disturb them on appeal." United States v. Katalinich, 113 F.3d 1475, 1482 (7th Cir. 1997), cert. denied, 522 U.S. 905 (1997); United States v. Walker, 25 F.3d 540, 546 (7th Cir.), cert. denied, 513 U.S. 953 (1994). The instructions utilized by the district court at trial, viewed as a whole, provided a "fair and accurate summary" of the elements necessary for finding a violation of Section 242 based on a police officer's excessive use of force, United States v. Bradley, 196 F.3d 762, 770 (7th Cir. 1999), and were, in fact, identical to the instructions affirmed by this Court in Bradley, supra. This Court in Bradley stated that to find that an officer used excessive force, the jury may consider the "degree of force used by defendant" and whether the force "was greater than the force that would appear necessary to a reasonable law enforcement officer." 196 F.3d at 769-770; see also U.S. Supp. App. Tab 3 at 91. Because the district court's jury instructions on the reasonableness of defendants' actions expressed a correct statement of law, they should not be disturbed. (3)

2. Defendants also argue (Br. 22) that the district court should have given their proposed supplemental instruction numbers 13 and 14 about the use of deadly force. The district court rejected defendants' instructions, ruling instead that the content of the instructions was adequately covered by the instructions the court gave (Tr. Vol. 4 at 146-147).

Defendants' proposed instruction number 13 sought to instruct the jury that a police officer may "use deadly force to stop a suspected felon, if the officer has probable cause to believe that the suspect poses a threat of serious physical injury to the officer or to another person" (Br. 23). Defendants' proposed instruction number 14 sought to instruct the jury that it is a "felony in Indiana if a rude, insolent or angry touching results in bodily injury to a law enforcement officer" (Br. 23). However, as defendants concede (Br. 24-25), the "pivotal inquiry is whether the court's instruction is adequate."

The district court's instructions are indeed adequate to address whether the defendants' use of force against Wilhoit was excessive under the circumstances. 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 defend himself or another from bodily harm" (Tr. Vol. 5 at 91; U.S. Supp. App. Tab 3 at 91).

In any event, there is insufficient evidence to support a separate jury instruction on the defendants' use of deadly force. Defendants argue (Br. 23) that part of their theory of defense was that they were justified in using force against Wilhoit because he stabbed Troxel, and that "force (even to the point of deadly force)" was needed so that Troxel could defend himself against Wilhoit. However, defendant Troxel testified that when he was stabbed or cut by Wilhoit, he was "bleeding" but that the bleeding was not "profuse[]" or "anything major" (Tr. Vol. 4 at 32). Defendant Troxel testified further that he never felt that the injury he received as a result of the stabbing was life threatening and that he did not seek medical treatment for his injuries (Tr. Vol. 4 at 32, 44).

Because the standards for assessing the reasonableness of the use of force in the circumstances in this case were fairly reflected in the district court's instructions to the jury, the district court's denial of defendant's proposed supplemental instruction numbers 13 and 14 did not prejudice defendants.

CONCLUSION

The district court's judgments of conviction and sentences for defendants Brown and Troxel should be affirmed.

Respectfully submitted,

BILL LANN LEE
Assistant Attorney General

JESSICA DUNSAY SILVER
LISA WILSON EDWARDS
Attorneys
Department of Justice
Civil Rights Division
P.O. Box 66078
Washington, D.C. 20035-6078
(202) 514-5695

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation set out in Federal Rule of Appellate Procedure 32(a)(7)(B) and Seventh Circuit Rule 32. This brief was prepared on WordPerfect 9 and utilizes the 14-point Times New Roman font. The brief contains 8,204 words.

Lisa Wilson Edwards
Attorney

CERTIFICATE OF SERVICE

I hereby certify that on November 2, 2000, two copies of the Brief for the United States, one copy of the Supplemental Appendix of the United States, and one disk containing the brief's text were served by first-class mail, postage prepaid, on each of the following counsel:

John Maksimovich
3145 45th Ave., Suite G
Highland, IN 46322

Thomas W. Vanes
9120 Connecticut, Suite G
Merrillville, IN 46410

Marce Gonzalez Jr.
9120 Connecticut Suite D
Merrillville, IN 46410

Lisa Wilson Edwards
Attorney

1. "R. ___" refers to the docket entries on the district court's docket sheet. "Tr. Vol. ___ at __" refers to the volume and page number of the transcript of the trial held March 13-21, 2000. "Tr. ___ (June 6, 2000)" refers to the transcript of the sentencing proceeding for David Brown. "Tr. ___ (July 27, 2000)" refers to the transcript of the sentencing proceeding for Bruce Troxel. "U.S. Exh. ___" refers to the United States' trial exhibits. "Br. __" refers to pages in defendants' brief. "Def. App. __" refers to pages of the Defendants-Appellants Separate Appendix accompanying the brief filed with this Court on Sept. 19, 2000. "U.S. Supp. App. Tab __ at __" refers to pages in the Supplemental Appendix filed by the United States with this brief.

2. The district court observed that this Court had affirmed the admission of prior bad acts in other cases where the acts had occurred as many as five and seven years prior to the occurrence of the crimes for which defendants in those cases were charged (Tr. Vol. 1 at 140, citing United States v. Kreiser, 15 F.3d 635, 640-641 (7th Cir. 1994) (prior bad act occurred seven years before charged offense); United States v. Goodapple, 958 F.2d 1402, 1407 (7th Cir. 1992) (prior bad act occurred five years before charged offense)).

3. Defendants also argue (Br. 20-21) that the district court's instructions do not address the manner in which the jury should assess evidence of defendants' failure to follow police department rules. They contend that such an instruction was necessary because the United States was arguing that failure to follow police rules showed their actions were unreasonable. The United States has not argued, however, that failing to follow police department rules violates a constitutional right or renders their actions unreasonable. The evidence instead demonstrates defendants' intent to act for a bad purpose. The fact that defendants failed to submit the appropriate, required paperwork after the incident provides support for the United States' theory that defendants knew that their beating of Wilhoit was wrong and that they did not want anyone else to know about it (see Tr. Vol. 5 at 18).