138.

Sample Trial Brief—Police Misconduct—18 U.S.C. § 242

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION UNITED STATES OF AMERICA v. CRIMINAL CASE NO. G-94-6 BELARMINO SANCHEZ TRIAL BRIEF Pursuant to the Order of Magistrate Judge Froeschner, dated May 20, 1994, the United States respectfully submits this Trial Brief for the assistance of the Court. On March 29, 1994, the Grand Jury returned a seven count indictment against defendant Belarmino Sanchez, a police officer with the Galveston, Texas Police Department. The charges arise out of allegations that the defendant coerced five women into engaging in sexual activities with him. SUMMARY OF THE FACTS At trial, the United States will introduce evidence to establish the following facts: During the fall of 1992, the defendant was a patrol officer with the Galveston Police Department. On five occasions, while on duty and in uniform, the defendant picked up and detained a woman in his patrol car. The defendant then drove to a deserted area and ordered the victim to perform oral sex on him. The defendant overcame the victims' resistance by telling them that they could comply or go to jail or by frightening and intimidating them. The evidence will also show that a short time after the defendant sexually abused Paula Ruiz, the defendant became aware that Ms. Ruiz was complaining about the defendant's conduct. He subsequently located Ms. Ruiz, handcuffed her, and forced her into his patrol car. After driving her to an isolated area, the defendant threatened her physically and also threatened to frame her for various crimes. The defendant also physically assaulted her by choking her and striking her with his pistol. SUMMARY OF THE LAW 18 U.S.C. 𨵊—Counts One, Two, Three, Four, Five and Six The defendant in this case is charged in Counts One through Six with having violated 18 U.S.C. 𨵊. That statute reads in relevant 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]. There are four elements which must be established to prove a violation of this statute: The victim must have been an inhabitant of a State, District or Territory of the United States; The accused must have been acting under color of law; The conduct of the accused must have deprived the victim of a right, privilege or immunity secured or protected by the Constitution or laws of the United States; The defendant must have acted willfully. United States v. Price, 383 U.S. 787 (1966); Screws v. United States, 235 U.S. 91 (1945); United States v. Senak, 477 F.2d 304 (7th Cir. 1973), cert. denied, 414 U.S. 856 (1973). 1. Inhabitancy The term "inhabitant" as used in 18 U.S.C. 𨵊 includes all persons who are present within the jurisdiction of the United States. So long as the victim is physically present within the jurisdiction of the United States at the time of the alleged incident, that person is an inhabitant of the United States within the meaning of 18 U.S.C. 𨵊 and is entitled to the protection afforded by that statute. United States v. Otherson, 637 F.2d 1276, 1283, 1285 (9th Cir. 1980).[FN1] FN1. If the victim is a foreigner who is merely passing through this country with no intent to spend even a single evening here, then his inhabitancy may be questionable. United States v. Maravilla, 907 F.2d 216 (1st Cir. 1990). The United States will introduce evidence to establish that at the time of the incidents, each victim lived in Galveston, Texas and thus was an inhabitant of the United States. Color of Law Where one acts by virtue of the authority given by federal, state or territorial law, such action is taken under color of law. United States v. Classic, 313 U.S. 299, 326 (1941); United States v. Tarpley, 945 F.2d 806 (5th Cir. 1991), cert. denied, 112 S.Ct. 1980 (1992). A state official who is engaged in activities related to the performance of his duties is acting under color of law. Screws v. United States, 325 U.S. 91, 111 (1944). Furthermore, acts committed under color of law include not only actions within the limits of lawful authority, but also encompass acts done beyond the bounds of lawful authority. "Acts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it." Id. The color of law element is not defeated by a claim that the defendant, in committing the acts alleged, did so for a purely personal purpose. An individual pursuing a private aim, such as sexual gratification, but doing so by abusing the power given to him by the state, is nevertheless, acting under color of law. See Tarpley, 945 F.2d at ??? (officer who retaliated against wife's lover was acting under color of law). The United States' evidence will prove that in each count, the defendant engaged in sexually abusive conduct in his patrol car, while on duty, while in uniform, and by using the authority of his office to coerce the victims into complying with his demands. Deprivation of Right The Fifth and Fourteenth Amendments to the United States Constitution guarantee to every person the right not to be deprived of liberty without due process of law. The right to personal bodily integrity is an important right secured by the "liberty" concept. This right protects individuals from being assaulted by persons acting under color of law. "Assault" encompasses both sexual assault and the use of excessive force. Counts One, Two, Three, Four, and Six concern allegations of sexual abuse. Courts have repeatedly found sexual abuse to be an egregious invasion of personal security which violates the fundamental interests protected by the Constitution. Thus, the unwanted touching or grabbing of an intimate part of the body, such as the genitals, breasts or buttocks, is prohibited by the liberty interest found in the Fourteenth Amendment. Stoneking, 667 F.Supp. at ???. Likewise, coercive sexual contact, such as compelled oral or vaginal sex, is a violation of the right to bodily integrity. See United States v. Contreras, 950 F.2d 232 (5th Cir. 1991)(rape of arrestee by police officer); United States v. Davila, 704 F.2d 749 (5th Cir. 1983)(INS officers coerced alien females into engaging in sexual intercourse); Stoneking v. Bradford Area School District, 667 F.Supp. 647 (W.D. Pa. 1987), aff'd, 856 F.2d 594 (3rd Cir. 1988)(sexual abuse of student by teacher); Doe v. Taylor Independent School D istrict, 15 F.3d 443 (5th Cir. 1994)(sexual abuse of student by teacher). The question of whether the contact was consensual in nature is one for the jury to determine after considering all of the evidence and circumstances of the case. As the cases make clear, however, no evidence of physical force need be shown. One factor that played an important role in the cases cited above is the degree to which the defendant was in a position of power over the victim. A person in authority can exercise his power to exert pressure on a weaker or more vulnerable victim. If that authority is employed to extract unwilling sexual compliance from the victim, then sexual assault has occurred. Thus, a police officer, correctional guard, or teacher who uses his or her position of authority to gain access to or cooperation from a vulnerable victim, engages in coercive assaultive behavior in violation of the constitution. In this case, the United States will show that the defendant sexually assaulted his victims by engaging in coerced oral and vaginal sex, by exposing his genitals while demanding that the victims perform oral sex on him, and by touching their intimate body areas. Moreover, the proof will show that the victims did not consent to these attacks and that the defendant used his office and the authority conferred on him by the State of Texas to gain access to his victims and to overcome their resistance to his demands. Count Five concerns the alleged use of excessive force by the defendant against Paula Ruiz in an incident which took place a short time after the sexual abuse incident. The evidence will show that the defendant used force against Paula Ruiz after he learned that she had complained to other people about his conduct. The Fourth Amendment to the Constitution guarantees to every person the right to be free from unreasonable seizures by persons acting under color of law. "[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, 109 S.Ct. 1865, 1871 (1989). The use of excessive force by a police officer constitutes an unreasonable seizure. Id. In this case, the evidence will show that the defendant used force which was unwarranted and unjustified. Force used to retaliate and for no legitimate law enforcement purpose constitutes excessive and unreasonable force. Specific Intent An act is willfully done if it is done voluntarily and purposefully, with a specific intent to do something the law forbids. In the context of 18 U.S.C. 𨵊, the element of willfulness requires that the accused have a specific intent to deprive the victim of a constitutional right. United States v. Stokes, 506 F.2d 771, 776-77 (5th Cir. 1975). It is not necessary, however, for the government to show that the defendant was thinking in constitutional terms at the time of the deprivation. Id. at 106; United States v. O'Dell, 462 F.2d 224, 232 n.10 (6th Cir. 1972). The fact that the defendant may have acted out of lust, anger or other personal emotion does not negate the specific intent to deprive the victim of a right protected by the Constitution of the United States. United States v. Delerme, 457 F.2d 156, 159 (3d Cir. 1972); Crews v. United States, 160 F.2d 746 (5th Cir. 1947). In this case the evidence will show that the defendant willfully deprived each victim of her right not to be deprived of liberty without due process of law. The circumstances surrounding each incident are incompatible with any claim of accident or innocent behavior. Bodily Injury 18 U.S.C. 𨵊 provides for increased punishment if the evidence proves that bodily injury resulted from the unlawful conduct of the defendant. This "resulting" language does not require a showing that the defendant intended by his actions to injure the victim. Rather, all that need be proven to satisfy this requirement and trigger the felony provision of the statute is that the injury came about as a foreseeable consequence of the unlawful acts of the defendant. United States v. Hayes, 589 F.2d 811 (5th Cir. 1979). The term "bodily injury" is not defined in 𨵊. That phrase is, however, defined in a similar manner throughout Title 18 to include "physical pain." See 18 U.S.C. §𨾗, 1365, 1515, and 1864. In United States v. Myers, 972 F.2d 1566 (11th Cir. 1992), the court approved an instruction defining "bodily injury" to include "physical pain" as well as other injuries no matter how temporary. In this case, the evidence will establish that the defendant used physical force against Paula Ruiz which caused pain as well as other injuries. B. 18 U.S.C. 924(c)—Count Seven Title 18, United States Code, Section 924(c) provides in pertinent part: Whoever, during and in relation to any crime of violence or drug trafficking crime...for which he may be prosecuted in a court of the United States, uses or carries a firearm [shall be guilty of an offense against the United States]. The United States must prove that the defendant used a firearm during the commission of a crime of violence that is prosecutable in a United States court. The question of whether the crime charged in Count Five of the Indictment, that is, 18 U.S.C. 𨵊, is a crime of violence is a matter of law for the Court to decide. The Fifth Circuit has previously affirmed the conviction of a police officer for violating Section 924(c) where the underlying crime was a violation of Section 242. See Contreras, 950 F.2d 232 (5th Cir. 1991). Cf. United States v. Koon, 6 F.3d 561, 563 (9th Cir. 1993)(§ 242 is crime of violence for purposes of Bail Reform Act). The evidence will show that the defendant struck Paula Ruiz in the head with his pistol thereby "using" his pistol during a crime of violence. Respectfully submitted, GAYNELLE GRIFFIN JONES DEVAL L. PATRICK United States Attorney Assistant Attorney General Southern District of Texas Civil Rights Division _________________________ __________________________ GERALD DOYLE SUZANNE DROUET Assistant United States Attorney Attorney, Criminal Section 440 Louisiana, Ste. 900 U.S. Department of Justice Houston, TX 77002 Washington, D.C. 20035-6018 713/238-9447 202/514-4154 [cited in Civil Rights Resource Manual 60]