Court Upholds Conviction in Police Beating of Motorist

US v. Perkins: Perkins was an off-duty Petersburg, VA, cop who somehow appeared at the scene of an incident involving three other officers and a motorist. The motorist had run away when police pulled over his vehicle. Once the motorist was caught, one of the cops began stomping on his head and kicking him in the stomach. When he arrived, Perkins decided to join in the fun, stomping the motorist on the head and delivering more kicks. Perkins was charged with depriving the motorist of his right to be free from excessive force, in violation of 18 USC 242, and convicted following a jury trial.

At trial, several officers testified about Perkins's actions and whether they were reasonable acts for a police officer to take given the situation. two of the officers who were present for the beating, but who did not participate, testified based on their first-hand knowledge of the events. Others testified based on statements made by Perkins and others. One officer, who taught courses in defensive tactics, testified as a "force expert" for the Government. Perkins moved for a judgment of acquittal, arguing that the evidence was insufficient to determine whether his blows, as opposed to the ones visited upon the motorist (who ended up in a coma, but responsive to pain) before he arrived. The district court (obviously) denied that motion. Perkins was sentenced to 51 months in prison.*

On appeal, Perkins made several arguments, all of which were rejected by the Fourth Circuit. First, he argued that the testimony from several of the officers regarding the appropriateness of his actions was improperly admitted expert testimony. Because Perkins failed to specifically object to that, the Fourth reviewed for plain error. The court concluded that the testimony of the two officers who were eyewitnesses to Perkins's actions was properly admitted, while the testimony based on second-hand knowledge was not. However, the improper introduction of that evidence did not affect the outcome of the trial. Second, Perkins argued that officers (including the properly utilized expert) testifying about the "reasonableness" of his actions were improperly offering legal conclusions in their testimony. The Fourth disagreed, concluding that such testimony was admissible under FRE 704(a). Finally, the court upheld the district court's rejection of Perkins's motion for a judgment of acquittal, holding that the evidence was sufficient to show that Perkins's actions caused "bodily injury" to the motorist.

* The cop who started the beating pleaded guilty to the same charge and got 108 months in prison.

Presumption of Reasonableness Goes to the Supremes

According to the New York Times, last Friday the Supreme Court granted cert in two cases involving major post-Booker sentencing issues. One, Rita v. US, comes out of the Fourth Circuit via an unpublished opinion. According to the Times:

The defendant in the first case, from North Carolina, is a 57-year-old retired marine named Victor A. Rita Jr., who was convicted of making false statements in connection with a federal investigation into the sale of kits for making machine guns.

While Mr. RitaÂ’s sentence, 33 months, was within the range provided by the sentencing guidelines, he argued on appeal to the United States Court of Appeals for the Fourth Circuit that the sentence was unreasonably long, given his poor health and unblemished record of federal service, both as a marine and in two civilian agencies.

But the Fourth Circuit, which is based in Richmond, Va., and includes North Carolina, is one of the federal circuits that have adopted a presumption of reasonableness for sentences within the guidelines range. The appeals court consequently rejected his appeal in a brief unpublished opinion.

Congrats to the MWDNC PD's office for having their petition granted.

The other case granted on Friday was from the Eighth Circuit, Claiborne v. US, involves what a district court must do to justify a below-the-Guidelines sentence:

Mr. ClaiborneÂ’s Supreme Court appeal, Claiborne v. United States, No. 06-5618, thus presents the other side of the coin: not whether it is presumptively reasonable to issue a sentence within the guidelines range, but whether it is presumptively unreasonable not to do so.

No indication on when the Court is scheduled to hear these cases.

UPDATE: The cert petition and other docs in the Rita case can be found here.

Edited to fix a link ancongratulatete the correct office.