On Appeal From the United States Court of Appeals For the District of New Jersey D.C. No. 95-cr-00063-1
Before: BECKER, MANSMANN, Circuit Judges, and SCHWARZER, District Judge. *fn*
This appeal by Ronald Johnstone, a former municipal police officer, in a federal criminal civil rights case, 18 U.S.C. Section(s) 242, requires us to consider the correctness of jury instructions concerning the excessive force and intent elements of that offense. We must also determine the propriety of a sentencing guideline enhancement for use of a dangerous weapon. *fn1 For the reasons that follow, we will affirm.
I. FACTS AND PROCEDURAL HISTORY
Johnstone and Richard Poplaski, former officers in the Kearny, New Jersey Police Department, were charged in a nine-count indictment with the use of excessive force in violation of 18 U.S.C. Section(s) 242. Three of the counts involved allegations against both Johnstone and Poplaski; six involved allegations against only Johnstone. Prior to and during trial, two counts against Johnstone and two counts against Poplaski were dismissed, leaving for the jury seven counts against Johnstone and one count against Poplaski. The jury convicted Johnstone of six of the remaining seven counts against him and acquitted Poplaski of the only remaining count against him. The district court sentenced Johnstone to 87 months in prison and imposed a fine.
Central to a number of Johnstone's arguments are the facts underlying the conviction. Of particular importance are the timing of the force and the type of force used. Therefore, we will briefly describe each of the instances for which Johnstone was convicted, viewing the evidence presented at trial in the light most favorable to the government. *fn2
A. Austin Burke (Count VII)
On February 14, 1990, Johnstone and a fellow officer stopped two men on the street whom they suspected of car theft. Johnstone seized one of the men, Austin Burke, handcuffed him, and threw him against the hood of the patrol car. Johnstone, who is six-foot three inches and three hundred pounds, then pushed him against the car several more times, and punched him on the body. While putting Burke in the patrol car, Johnstone thrust his head against its roof.
B. John Blevins (Count IV)
The jury convicted Johnstone for his role in the arrest of John Blevins. On May 14, 1990, Blevins was waiting on a street corner after attending a house party. Johnstone and several other Kearny police officers, responding to a complaint about noise, arrived at the scene. Blevins became disorderly, and one of the other officers started to struggle with him while attempting to place him under arrest. Johnstone observed the struggle and moved in to assist the other officer. After other officers had handcuffed Blevins and forced him to lie on the ground, Johnstone kicked him in the mouth and chest.
C. Peter Sudziarski (Count III)
The jury also convicted Johnstone of employing excessive force against Peter Sudziarski. On September 19, 1990, Johnstone and Poplaski stopped Sudziarski and a friend, who were driving in a stolen car. Sudziarski fled on foot, but was promptly apprehended and handcuffed. His friend evaded apprehension. Immediately after handcuffing Sudziarski, one of the officers (it was not clear whether it was Johnstone or Poplaski) kicked him in the back of the head. Later, upon walking Sudziarski to the patrol car, Johnstone struck him in the head and chest with his flashlight when Sudziarski refused to reveal his accomplice's name. Johnstone placed Sudziarski in the patrol car and again asked for his accomplice's name. When Sudziarski refused to answer, Johnstone hit him across the face with his flashlight.
D. Michael Perez (Counts V & VI)
Johnstone was convicted of twice using excessive force against Michael Perez on July 5, 1991. Perez and five friends were returning to Kearny from a Fourth of July celebration in Jersey City when two of his friends got into a fight. When the police arrived at the scene, Johnstone told Perez that he was under arrest, and he and several officers walked Perez to his squad car. Then, while attempting to handcuff Perez, Johnstone struck him on the back of his head with a flashlight.
Perez and Johnstone exchanged words in the patrol car during the trip to the Kearny police station. Upon arriving at the station house garage, Johnstone pulled Perez out of the car, and beat him, punching and kicking him in the head and on the body. It was disputed at trial whether Perez remained handcuffed at that time.
E. Robert Burden (Count IX)
The last incident occurred on September 1, 1991. Robert Burden came out of a bar and discovered that the police had arrested his son. He tried to glean some information about the arrest from police officers at the scene, but was told by Johnstone to leave. He returned to the bar. Shortly thereafter, Johnstone followed him into the bar. Upon finding him, Johnstone pulled Burden off his bar stool, threw him against a video machine and against the wall, pushed him to the floor, and kicked him. Johnstone then handcuffed Burden and took him away.
The district court exercised jurisdiction over the criminal case pursuant to 18 U.S.C. Section(s) 3231; we exercise appellate jurisdiction over the judgment of conviction and sentence ...