135.

Sample Trial Memorandum—18 U.S.C. § § 241, 242

INTRODUCTION On August 24, 1990, a federal grand jury returned a nineteen count indictment charging the defendants with conspiring to violate Constitutional rights, in violation of 18 U.S.C. 𨵉. It also charged certain defendants in eighteen counts of specific violations of civil rights, each in violation of 18 U.S.C. 𨵊. The Indictment charges that the defendants, while serving as Oakland Housing Authority (OHA) Police Officers, engaged in a pattern of brutality and deceit against persons whom they contacted. The defendants thus violated the individuals' constitutionally protected rights by using unnecessary force, stealing their money, presenting false evidence, and did conspire to do so. The Court has set trial to begin at 8:00 a.m. on Monday, March 4, 1991. A pre-trial conference is set for 2:30 p.m. on February 25, 1991. The United States estimates that this trial will take four weeks. Each defendant is free without bond. No days have run from the speedy trial clock as this Court has excluded all time through March 4, 1991, to allow for the preparation of this case. SUMMARY OF THE FACTS Background This case involves a group of police officers from the Oakland Housing Authority Police Department who repeatedly and regularly abused their authority by engaging in a widespread pattern of misconduct against people who were present at or near Oakland Housing Authority property. The misconduct included assaulting individuals whom they arrested or detained, stealing money from these people, planting drugs on them, falsely arresting them, filing false reports and testifying falsely in court in order to obtain convictions. During the period of the conspiracy the OHA Police Department was a law enforcement agency of approximately 24 police officers in Oakland, California. The officers have typical police powers, such as power of arrest and power to enforce state and local laws. The Department's mission is to provide police services to residents of public housing in Oakland. In early 1989, OHA received a federal grant to, among other purposes, establish a Drug Suppression Unit ("Drug Task Force") whose mission would be to enforce narcotics laws on or about OHA property. This grant was for a two year period. In April, 1989, six new officers were hired, including defendants Dwyer, Houston and Reese. These three defendants, along with three other individuals, were assigned to the Drug Task Force. The leader of the Drug Task Force was defendant Broussard, a sergeant and long-time employee of the OHA Police Department. The evidence will show that defendant Broussard personally led and directed the activities of the Task Force members in the field, presided over the pre-shift meetings of the Task Force, and was responsible for reviewing all of the police reports written by Task Force members. Defendants Dwyer, Houston, and Reese were regularly assigned to the Task Force during all or most of the period of the conspiracy. The defendants were a tightly-knit group of police officers who deliberately distanced themselves from the rest of the OHA police force so that they could carry out their nefarious campaign of theft, deception and brutality. Defendants Fisher and Carter served on the Task Force occasionally, sometimes in supervisory capacities when Sergeant Broussard was on leave. Specific Acts Charged In the Indictment the grand jury has charged the defendants in a conspiracy count alleging 33 overt acts. It also charged eighteen of these acts as substantive criminal violations. These acts and violations involve instances of unnecessary force, filing false reports, lying in court against defendants, theft of money, false arrests, and the failure to keep persons in custody from harm. The Government will also present evidence of uncharged acts, not all of which are described here. The evidence will show that from the inception of the Drug Task Force defendant Broussard, through his words and actions, communicated to his officers that it was permissible to assault people, steal their money, plant drugs on them, and present false evidence against them. The evidence will show that defendant Broussard took no action to intervene in acts of unnecessary force nor to discipline officers who used unnecessary force, did not return reports which were stated facts he knew to be false and which were submitted to him, participated in the theft of money from suspects, and pronounced policies which encouraged these activities. On various occasions defendant Broussard told the members of the Task Force that when someone is hurt by officers they therefore must be arrested to justify the hospital costs. He also told members of the Task Force that they would come into contact with money from drug activities and that it would not matter if some of this "dirty money" did not get turned in. He also engaged in acts of unnecessary force and falsely attributed drugs to suspects. Defendant Broussard was present and in charge at most of the incidents alleged in the Indictment. Jackie Dailey Incident On May 16, 1989, Jackie Dailey was near OHA property helping to fix a friend's car when the Drug Task Force pulled up to the scene. Dailey was doing nothing wrong, and was legitimately near OHA property. After several persons present, including Dailey, had been contacted, defendant Reese approached Dailey and, because he did not like the hat Dailey was wearing, tore the hat, grabbed Dailey, and repeatedly slammed him on the ground and the car, fracturing Dailey's arm. The assault by defendant Reese was unprovoked, and defendant Broussard stood nearby and took no action to stop this assault. Defendant Broussard later approved a police report written by defendant Houston which falsely charged Dailey with loitering on or about OHA property. (Count Two: Unnecessary Force -- Reese; Count Three: Broussard—Failure to Keep From Harm; Count Four: Houston—False Arrest). Rosie and Salvador Verduzco Incident On June 30, 1989, Rosie Verduzco and her husband, Salvador Verduzco, had parked in front of the home of Salvador Verduzco's father, and were exiting their car when the Task Force arrived. Defendant Houston contacted Rosie Verduzco, the two exchanged words and defendant Houston started pulling her hair and then struck her in the head with his flashlight, causing a laceration which required stitches. At the same incident defendant Dwyer forcefully kicked Salvador Verduzco in the testicles without justification—Mr. Verduzco was cooperating by keeping his hands on the car with his legs spread apart and only verbally objected to the beating of his wife. Defendant Broussard was in a position to observe the beating by defendant Houston but took no action to stop it or otherwise intervene. Defendant Houston falsely charged Ms. Verduzco with resisting arrest when in fact she had not physically resisted in any way. (Count Five: Houston—Unnecessary Force; Count Six: Houston— False Arrest; Count Seven: Broussard—Failure to Keep from Harm; Count Eight: Dwyer—Unnecessary Force). David McClendon Incident On June 1, 1989, David McClendon was chased onto a ball field by an OHA officer who had not observed him commit any criminal activity. A squad car chasing McClendon collided with the ballpark backstop. Two of the officers from that car apprehended McClendon. One seized him and had him under control and was preparing to handcuff him; McClendon was not resisting. The other officer, defendant Dwyer, then struck McClendon in the head with his flashlight causing bleeding from lacerations which required stitches. Defendant Broussard inquired about what they could charge McClendon with. Some rocks of crack cocaine were found on the seat of the police car which had transported McClendon from the site of defendant Dwyer's blows back to the ballfield. Co-conspirator Jeff Garden then wrote a false report stating that he had seen McClendon drop some of this cocaine before being chased, and found the rest of it on the seat. Coconspirator Garden submitted the report to defendant Brouss ard who, despite knowing that those facts were untrue, did not alter it. Defendant Broussard later stated that the rocks found on the seat of the car did not belong to McClendon. (Count 9: Unnecessary force—Dwyer; Count 10: aiding and abetting a false arrest—Broussard). Darnell Wardlow Incident On November 25, 1989, Darnell Wardlow was arrested by two coconspirators. Defendant Dwyer arrived with the transport car. Defendant Dwyer first tied the drawstrings of the sweatshirt of the handcuffed Wardlow tightly around Wardlow's neck so that Wardlow was choking. Coconspirator Garden had to cut the string. When Wardlow was placed, still handcuffed, into defendant Dwyer's patrol car, defendant Dwyer struck Wardlow a number of times in the face without justification. (Count 11: Unnecessary Force—Dwyer) Glenn Losh Incident On June 29, 1989, the Task Force stopped to contact Glenn Losh and his girlfriend, Evyann Riddle. As Glenn Losh was cooperating with his hands behind his neck, defendant Reese struck forceful, sharp blows to his ribs on each side with his hands, causing Glenn Losh to partly collapse. (Count 12: Unnecessary Force—Reese). Jerry Watkins Incident On October 7, 1989, Jerry Watkins, 42 years old, went to an area on Pleitner Street to look for his son. He engaged in no suspicious or illegal activity. When the OHA Task Force arrived defendant Dwyer, in plain clothes, yelled to him and threatened him without identifying himself as a police officer. Watkins ran. Defendant Dwyer pursued and caught Watkins. Without provocation or justification defendant Dwyer struck Watkins in the head with his flashlight causing an injury requiring medical attention. (Count 13: Unnecessary Force -- Dwyer) Videotape - Operation 3 The United States will present the videotape of the DA/OPD investigation Operation 3 in which defendant Dwyer is seen striking, choking and kicking the undercover officer without justification. The evidence will also show that defendant Dwyer initially removed money from the officers and that less than the amount of money taken from the undercover officer was turned in with the police report. The tapes clearly reveal that defendant Dwyer wrote a false police report concerning the location of the narcotics, and defendant Fisher wrote a false police report claiming to have seen contact between the undercover officer and a narcotics dealer, and claiming to have seen narcotics in the undercover officer's possession. (Count 14: Unnecessary Force—Dwyer; Count 15: Theft -- Dwyer) Videotape Operation 7 The Government will present the videotape of the DA/OPD Operation 7. This will show the arrest of an undercover officer by officers Reese and Houston. The evidence will shown that less than the amount of money taken from the officer was turned in with the police report and that the report misstates who found the narcotics. (Count 16: Theft—Reese, Houston) Cliofas Soluno Incident On August 25, 1989, Officers Reese and Houston stopped a car. In the trunk of the car there was a large quantity of marijuana and approximately $2000 in cash. Defendants Reese, Houston, Broussard, Dwyer and coconspirator Garden discussed in groups the possibility stealing the money. Later, shares of the money were distributed to these five officers by defendant Houston. (Count 17: Theft—Broussard, Dwyer, Houston, Reese). Ed Jackson and David Lyles Incidents In each of these incidents defendant Reese wrote a false report about incidents involving juveniles and later lied at court hearings in order to be consistent with his report. In the Jackson incident Reese actually contacted Jackson in a driveway on OHA property. Defendant Broussard then approached with some narcotics which he said he had found nearby. Defendant Reese falsely wrote and testified that he and coconspirator Garden had observed Jackson going back and forth to a hole in the grass to examine the bag of narcotics. In the Lyles incident Reese and other members of the Task Force came upon a group of males, including Lyles, standing in front of OHA property. Coconspirator Garden located a box with cups of marijuana across the street. Lyles had some money on his person. Defendants Reese and Broussard conferred. Defendant Reese arrested Lyles and falsely wrote and later testified that he has seen Lyles hold and drop the box and then cross the street, where he was arre sted. (Counts 18 and 19: False Evidence—Reese) Other Overt Acts The United States will also present evidence of additional charged and uncharged over acts. These include an instance in approximately April, 1989, when defendant Broussard struck an unknown male with lead weighted gloves, called "sap gloves" without justification. These also include incidents involving Demetrius Findley, Eugene Aubrey, and Sherman Gay in which defendant Broussard either attempted to attribute narcotics to an individual who did not possess the narcotics (Aubrey), or advised on the creation of a false report by other Task Force members. (Findley and Gay). The evidence will also show that in videotaped Operation Two defendant Carter clearly fabricated the facts in an arrest report, stating that he saw the undercover officer drop narcotics when in fact the narcotics were found in a bag on the ground after the officers had to come back a second time to look for them. The undercover officer from Operation 7 will testify that while he was in the backseat of the patrol car after his arrest, he observed defendant Dwyer use unnecessary force on an individual while defendant Carter, the acting supervisor at the time, watched and took no action. The United States also will present evidence of other uncharged acts in furtherance of this conspiracy, for which it has given notice to the defense. SUMMARY OF THE LAW Conspiracy to Interfere with Constitutional Rights—18 U.S.C. 𨵉 Introduction Count One of the Indictment charges the defendants with conspiring to deprive inhabitants of California of their Constitutional rights (1) to be free from the use of unnecessary force; (2) not to have false evidence intentionally presented against them by police officers, and (3) to be free from the intentional deprivation of property without due process of law, all in violation of 18 U.S.C. § 241. That statute provides as follows: If two or more persons conspire to injure, oppress, threaten, or intimidate any inhabitant of any State, Territory, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States..., [they] shall be fined not more than $10,000 or imprisoned not more than ten years, or both. 18 U.S.C. § 241. Elements of Section 241 Section 241 has three elements: Two or more persons must conspire together to injure, oppress, threaten or intimidate one or more victims. The defendant intended by the conspiracy to hinder, prevent, or interfere with a person's free exercise or enjoyment of a right secured by the Constitution or laws of the United States. At least one of the intended victims must be an inhabitant of a state or territory, here California. United States v. Price, 383 U.S. 787, 800 (1966). Unlike conspiracies under 18 U.S.C. 𨷋, section 241 does not require an overt act as an element of the offense. United States v. Skillman, 922 F.2d 1382 (9th Cir. 1991). Proof of Conspiracy A conspiracy is an agreement by two or more persons to accomplish some unlawful purpose, or to accomplish a lawful purpose by unlawful means. United States v. Feola, 420 U.S. 671, 695-96 (1975). Thus, a conspiracy is a kind of partnership in criminal purposes in which each member becomes the agent of every other member. It is no defense that a defendant's participation in a conspiracy was minor or for a short period of time. Nor does the government have to prove that each conspirator joined the conspiracy at the time of its formation, or that each conspirator played an equal role in the conspiracy. United States v. Saavedra, 684 F.2d 1293, 1301 (9th Cir. 1982). A person may be a member of a conspiracy even though the person does not know all of the purposes of the conspiracy. United States v. Escalante, 637 F.2d 1197, 1200 (9th Cir. 1980). A single conspiracy may include subgroups or subagreements, and the evidence need not exclude every hypothesis other than that a single conspiracy exists. United States v. Patterson, 819 F.2d 1495, 1502 (9th Cir. 1987). The Government need only prove a slight connection between the defendant and the conspiracy. United States v. Cuevas, 847 F.2d 1417 (9th Cir. 1988). The Government need not prove that the agreement between the co-conspirators was express or formal. The evidence must show that the defendants positively or tacitly came to a mutual understanding to try to accomplish an unlawful plan. See Pereira v. United States, 397 U.S. 1, 12 (1954). Ordinarily, only the results of a conspiracy, rather than the agreement itself, are observable. The existence of the conspiracy need not be proved by direct evidence but may be inferred from all of the facts and circumstances of the case. United States v. Disla, 805 F.2d 1340, 1348 (9th Cir. 1986). Traditionally, courts look to the conduct of the alleged conspirators to find proof of the agreement. Count One charges that the members of this conspiracy used a number of different means and methods to accomplish the three objectives of the conspiracy, including assaulting individuals, creating and filing false reports, and stealing money from suspects. In order to establish the existence of a conspiracy, the Government need not establish that the members agreed on or used all of these means and methods, or that the members knew all of the details of the conspiracy. Rather, it is sufficient for the Government to establish that two or more persons, including one or more of the accused, agreed to accomplish at least one of the charged objectives of the conspiracy. In this case, the evidence, as outlined in the preceding section, will show that the defendants were a tightly-knit group of police officers who deliberately distanced themselves from the rest of the OHA police force so that they could carry out their nefarious campaign of theft, deception and brutality. The evidence establishes numerous instances of brutality, false arrest, false report writing, drug planting, and money theft. These results of the defendants' collective efforts convincingly demonstrate the underlying and perhaps implicit agreement to violate the civil rights of citizens. The words "injure," "oppress," "threaten," or "intimidate," as used in Section 241 are not to be interpreted in any technical sense, but carry their ordinary meaning. They cover a variety of conduct intended to harm, frighten, or inhibit the free action of other persons or which constitutes the abuse of authority by the defendants. The defendants' acts in assaulting individuals, filing false reports, falsely testifying in court, and stealing money clearly fall within the ordinary meaning of these terms. Object of the Conspiracy Count One charges that the conspiracy had as its object the intimidation of persons in their exercise of three protected constitutional rights. Each of these rights is described below. The United States need only prove that the defendants agreed to violate one of these rights, though the jury must be unanimous as to the agreement about that right. The indictment charges that the defendants, while acting under color of law, conspired to deprive the victims of their constitutional rights to be free from (1) the intentional use of unreasonable force by persons acting under color of law; (2) the intentional presentation of false evidence by persons acting under color of law, and (3) the intentional deprivation of property without due process of law. Unreasonable Force The Fourth Amendment to the Constitution guarantees to every person the right to be free from unreasonable seizures. "[A]ll claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other "seizure" of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard...." Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 1871 (1989). The use of excessive force by a police officer in the course of an arrest constitutes an unreasonable seizure. Id. An officer's use of force is judged against an objective standard. The jury is entitled to consider all the attendant circumstances, including the use of a weapon, the character and duration of the assault, and any provocation, in determining whether a violation of the victims' constitutionally protected rights occurred. Graham, 109 S.Ct. at 1872 (reasonableness depends on the circumstances). However, mere words, without more, do not constitute aggression and thus do not provide any justification for an officer to assault a person in his custody. See Houston v. Hill, 482 U.S. 451, 462-63 (1987)("The freedom of individuals verbally to oppose or challenge police action without there by risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state."); United States v. Cobb, 905 F.2d 784, 789 (4th Cir. 1990). In this case, the evidence will show that the defendants repeatedly used force which was unwarranted and unjustified. None of the victims were posing a physical threat to the officers, nor were they physically resisting arrest when struck. This use of force was excessive, unnecessary, and unreasonable, and in violation of Fourth Amendment protections. Presentation of False Evidence All persons have a constitutional right under the Due Process clause of the Fifth and Fourteenth Amendments not to have false evidence intentionally presented against them by individuals acting under color of law. United States v. Paterson, 809 F.2d 244 (5th Cir. 1987); United States v. Wallace, 673 F.Supp. 205 (S.D. Tex. 1987); The evidence will show that the defendants routinely prepared arrest reports which contained false material statements that were intended to improperly increase the apparent weight of the evidence against the arrestee. The defendants knew that these false reports were relied on by prosecutors to make charging decisions, and that they would be asked to testify to those facts in court proceedings. In addition, the evidence will show that conspirators knowingly testified falsely at court hearings in order to wrongfully inculpate persons that they arrested. All such action was in violation of the individuals' constitutional right to due process of law. Theft of Money All persons have a constitutional right under the Fifth and Fourteenth Amendments not to be deprived of property without due process of law by individuals acting under color of law. A police officer who steals money from someone who is under police arrest or detention, or knowingly receives such stolen money, violates that person's constitutional right to be free from the deprivation of property without due process of law. United States v. Alonso, 740 F.2d 862 (11th Cir. 1984); United States v. McClean, 528 F.2d 1250 (2d Cir. 1976). The evidence will show that a number of the defendants and coconspirators stole money from persons who were arrested or detained by Task Force members, and these conspirators frequently split the proceeds of these thefts among themselves, in violation of the individual's constitutionally protected right. Acting Under Color of Law The constitutional rights discussed above are only protected as against state action—persons acting under color of law. When one acts by virtue of the authority given him by state law, such action is taken under color of law. Screws v. United States, 325 U.S. 91, 107-109 (1945); United States v. Classic, 313 U.S. 299, 326 (1941). A law enforcement officer who is engaged in activities related to the performance of his duties is acting under color of law. Screws, supra, at 107-109. Further, even acts which may violate state law, such as assaults, false arrests, theft, or perjury which are outside the bounds of the officer's lawful authority, are acts committed under color of law. Screws, supra, at 110-11. During all of the activities alleged in the indictment, the defendants were police officers with the OHA Police Department who were on duty and acting or purporting to act in their official capacities. Consequently, their repeated abuses of authority occurred while they were acting under color of law. Inhabitancy of Victims Section 241 requires proof that at least one of the intended victims was an inhabitant of a state or territory, here California. United States v. Otherson, 637 F.2d 1276 (9th Cir. 1980), cert. denied, 454 U.S. 840 (1981). An inhabitant of California for purposes of the statute means a person who was physically present in California at the time of the incident charged in the indictment. Id. The evidence will show all of the victims named in the indictment were present in California when the defendants committed acts against them in furtherance of the conspiracy. Deprivation of Constitutional Rights Under Color of Law— 18 U.S.C. § 242 The grand jury charged certain defendants in Counts Two through Nineteen with depriving specific victims of certain constitutional rights while acting under color of law, in violation of 18 U.S.C. 𨵊. This statute prohibits substantive violations of constitutional rights. Section 242 of Title 18 provides in pertinent part: Whoever, under color of any law, statute, ordinance or custom, willfully subjects any inhabitant of any state, territory or district to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . [shall be guilty of a crime against the United States]. Many of the legal principles discussed above with respect to Section 241 apply equally to Section 242. Elements of Section 242 In order to establish a violation of section 242, the United States must prove four, and in some cases five,[FN1] essential elements: FN1. In the eight counts in which various defendants are charged with using unreasonable force, as well as the two counts in which defendant Broussard is charged with willful failure to keep from harm, the grand jury charged that the violation resulted in bodily injury to the victim. The victim must have been an inhabitant of the State of California; The defendant(s) must have acted under color of law; The conduct of the defendant(s) must have deprived the victim of a right secured by the Constitution of the United States. Different constitutional rights are involved in different counts. The defendant must have acted willfully and with the intent to deprive the victim of the particular constitutional right which is implicated in the particular count, and Where charged, the violation resulted in bodily injury to the victim. The first two elements—inhabitancy and color of law—are defined for Section 242 just as they were defined above for Section 241, although color of law is a specific element of the offense under this statute. Protect Rights The third element which must be established is that the defendant deprived the victim of a constitutional right. The rights to be free from unreasonable force and from deprivations of property without due process of law were discussed above. Those discussions apply equally here to Section 242. Further, perjury by a police officer at trial constitutes a deprivation of due process of law prosecutable under Section 242. Briscoe v. LaHue, 460 U.S. 325, 345 n.32 (1983). Every person has a Constitutional right under the Fourteenth Amendments not to be deprived of liberty without due process of law. This provision includes the right to be kept free from physical harm while in official custody or detention. Logan v. United States, 144 U.S. 263, 12 S.Ct. 17 (1892); United States v. McKenzie, 768 F.2d 602 (5th Cir. 1985); Lynch v. United States, 189 F.2d 476 (5th Cir. 1951); Catlette v. United States, 132 F.2d 902 (4th Cir. 1943). An officer, and in particular a supervisor such as defendant Broussard, has a constitutional duty to intervene when he observes the use of unnecessary force against a person who is in police custody. The Government will establish that on the two occasions charged defendant Broussard personally witnessed the use of unreasonable force by other defendants and was able but did not intervene to stop the unlawful assaults. The right not to be deprived of liberty without due process of law also includes the right not to be arrested without probable cause. Gerstein v. Pugh, 420 U.S. 103, 111 (1975). Probable cause to arrest exists when there are "facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Michigan v. DeFillipo, 443 U.S. 31, 37 (1979). In each of the three false arrest counts the Government will prove that all of the victims had been unlawfully assaulted by various defendants. Then, in an effort to cover up this wrongdoing, the defendants created false charges in an effort to falsely inculpate the victims in wrongdoing. The Defendants Must Have Acted Willfully Section 242 requires that the accused acted willfully. Under this statute, willfulness means a specific intent to deprive the victim of a constitutional right—"an evil motive to accomplish that which the statute condemns." Screws v. United States, supra, 325 U.S. at 101. The statute does not require the Government to show that the defendants were thinking in constitutional terms at the time of the deprivations. Id. at 106. A person may be guilty of a violation of Section 242 without any familiarity with the Constitution. If the defendant intended to deprive the victim of a right, such as, for example, intending to use more force than is necessary, or intending to steal money, he need not "recognize the unconstitutionality of the acts." United States v. Ehrlichman, 546 F.2d 910, 921 (D.C. Cir. 1976). United States v. Gwaltney, 790 F.2d 1378, 1386 (9th Cir. 1986). It is sufficient if the defendant intended the result which is the violation. Moreover, the requisite specific intent need not be expressed but may be "inferred from all the circumstances attendant to the act." United States v. O'Dell, 462 F.2d 224, 232 n.10 (6th Cir. 1972); Williams v. United States, 341 U.S. 97, 102 n.* (1951). A jury may infer from the circumstances of an arrest or a beating or a theft that the defendant(s) knew that the arrest was unjustified, the force was unnecessary, or the theft was a knowing deprivation of property. Finally, in order to establish specific intent, an illegal assault in violation of Section 242 need not be premeditated nor of long duration. United States v. Stokes, 506 F.2d 771, 776 (5th Cir. 1975). Nor does the fact that a defendant may have acted out of anger or to vent personal animosity negate the requisite specific intent to deprive the victim of a protected right. United States v. Delerme, 457 F.2d 156, 159 (3d Cir. 1972); Crews v. United States, 160 F.2d 746, 749-50 (5th Cir. 1947). The Defendants' Acts or Failures To Act Resulted in Bodily Injury to The Victims In the eight unnecessary force counts as well as the two counts in which defendant Broussard is charged with willful failure to keep from harm, the Government must also prove that the defendants actions or failure to act resulted in bodily injury to the victims. Bodily injury is not defined in 18 U.S.C. 𨵊. However, it is consistently defined broadly elsewhere in Title 18 as: a cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of the function of a bodily member, organ, or mental faculty; or any other injury to the body, no matter how temporary. 18 U.S.C. 𨾗(f)(3); 18 U.S.C. �(g)(4); 18 U.S.C. �(a)(5); 18 U.S.C. �(d)(2). The United States does not have to prove that the defendants intended to cause injury; the United States need prove only that bodily injury resulted from the defendant's acts or failure to act. United States v. Hayes, 589 F.2d 811, 820-22 (5th Cir.), cert. denied, 444 U.S. 847 (1979) (interpreting "death results" clause of 18 U.S.C. § 242). In this case, the Government will prove that the victims' injuries were a direct result of the defendants' unjustified assaults. The government will also show that defendant Broussard's willful failure to take any action to stop the unlawful assaults on Jackie Dailey and Rosie Verduzco resulted in bodily injury to these individuals. OTHER LEGAL MATTERS The United States here notes several evidentiary issues which may arise during the presentation of its evidence. Other issues may be raised at a later time. The United States intends to respond to defendant Fisher's motion in limine to exclude evidence that pieces of crack cocaine were found in defendant Fisher's personal locker during the December 1989 search of the OHA police building. The United States intends to move in limine to introduce evidence that prior to May, 1989, internal affairs complaints would be received at the OHA police department at the rate of about one or two a month and typically were about rudeness. After May of 1989 internal affairs complaints were received daily and were about excessive force, theft of money, and planting of evidence, and that 99% of these complaints were directed against members of the Drug Task Force. The increase in these complaints caused one individual to raise the issue with certain defendants, who were thereby fully informed of the wrongfulness of their actions. improper. The United States intends to move in a separate in limine filing to exclude all evidence which may bear on defendant Fisher's selective prosecution allegations as irrelevant to the issues at trial. Jury Instructions, Voir Dire Questions, Exhibit and Witness Lists, and Verdict Form The United States' proposed jury instructions, voir dire questions, exhibit and witness lists, and verdict forms will be filed separately. The United States will provide exhibit lists and witness lists in reliance on the defendants similarly providing, during the week before trial, copies of their exhibit and witness lists. DATED: February 26, 1991 Respectfully Submitted, WILLIAM T. McGIVERN, JR. United States Attorney ALBERT S. GLENN LAWRENCE J. LEIGH Assistant United States Attorneys THOMAS E. PEREZ Attorney, U.S. Department of Justice [cited in Civil Rights Resource Manual 60]