The opinion of the court was delivered by: Brieant, J.
Before this Court for decision following a seven day jury trial concluded on September 20, 2006, are motions by the Defendant pursuant to Rule 29(c) and Rule 33 of the Federal Rules of Criminal Procedure ("F.R.Crim.P."), seeking a judgment of acquittal and an additional determination for a new trial, should the judgment of acquittal be denied, or if granted, later vacated or reversed. See F.R.Crim.P. Rule 29(d)(1).
Defendant was convicted on a single count Indictment, charging a violation of 18 U.S.C. § 242. The Indictment recites that Defendant at relevant times was employed as a Correction Officer at the Westchester County Department of Correction in Valhalla, New York; that Zoran Teodorovic was a pre-trial detainee in the custody of the Westchester County Department of Correction on October 10, 2000; and also alleges that:
On or about October 10, 2000, Paul M. Cote, the defendant, while employed as a Correction Officer at the Westchester County Department of Correction in Valhallla, New York, and while acting under color of the laws of the State of New York, did willlfully strike, kick, stomp, and otherwise assault Zoran Teodorovic while Teodorovic was restrained and under the physical control of another Correction Officer, resulting in bodily injury to Zoran Teodorovic, and did thereby willfully deprive Zoran Teodorovic of rights and privileges secured and protected by the Constitution and laws of the United States, to wit, the right of Zoran Teodorovic not to be deprived of liberty without due process of law, which includes the right to be free from excessive force amounting to punishment by one acting under color of law.
Indictment ¶3 (emphasis added).
Section 242 of Title 18 of the United States Code is the criminal analog of 42 U.S.C. §1983, and reads in relevant part as follows:
Section 242 - Deprivation of Rights under Color of Law Whoever, under color of any law, statute, ordinance, regulation or custom willfully subjects any person in any State, Territory, Commonwealth, Possession or District to a deprivation of any rights, privileges or immunities secured or protected by the Constitution or laws of the United States. . .shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section. . .shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section. . .shall be fined under this title or imprisoned for any term of years or for life or both, or may be sentenced to death.
18 U.S.C. §242 (emphasis added). Specific criminal intent to engage in conduct having the effect of depriving a person of a federal right is an essential element of this crime. See United States v. McClean, 528 F.2d 1250, 1255 (2d Cir. 1976); Screws v. United States, 325 U.S. 91, 106 (1945).
Counsel for Defendant have mounted a broad attack on the verdict, based on different discrete theories and contentions, some of which, although not presently supported by the caselaw in this Circuit, are supported by non-frivolous arguments for the modification of existing law or the establishment of new law. The Court finds the verdict in this case deeply troubling on more than one level of consideration, and for the reasons set forth below, grants the motion for a judgment of acquittal, and conditionally grants the motion for a new trial, within the provisions of Rule 29(d).
Rule 29 created the judge-ordered "judgment of acquittal" in place of the directed verdict, which was at least fictionally returned by the jury at the judge's direction, rather than coming from the judge alone. But, we said in Martin Linen [430 U.S. 564 (1977)], change in nomenclature and removal of the jury's theoretical role make no difference; the Rule 29 judgment of acquittal is a substantive determination that the prosecution has failed to carry its burden.
Rule 33  states that "the court may grant a new trial to [a] defendant if the interests of justice so require." Fed. R. Crim. P. 33. The rule by its terms gives the trial court "broad discretion . . . to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice." United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). The district court must strike a balance between weighing the evidence and credibility of witnesses and not "wholly usurping" the role of the jury. [United States v.] Autuori, 212 F.3d , 120 [2d Cir. 2000]. Because the courts generally must defer to the jury's resolution of conflicting evidence and assessment of witness credibility, "it is only where exceptional circumstances can be demonstrated that the trial judge may intrude upon the jury function of credibility assessment." Sanchez, 969 F.2d at 1414. An example of exceptional circumstances is where testimony is "patently incredible or defies physical realities," although the district court's rejection of trial testimony by itself does not automatically permit Rule 33 relief. Id.
United States v. Ferguson, 246 F.3d 129, 133-134 (2d Cir. 2001). "The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." Id. at 134. The standard for the granting of a new trial is less rigorous than for judgment of acquittal notwithstanding the verdict, because in connection with Rule 33, the Court may consider the fact that the verdict was contrary to the weight of the evidence, and may also deal more freely with issues of credibility and the inferences to be drawn from the proof at trial. "[A] trial court has broader discretion to grant a new trial pursuant to Rule 33 than to grant a motion for a judgment of acquittal pursuant to Fed. R. Crim. P. 29, where the truth of the prosecution's evidence must be assumed." Sanchez, 969at 1414 (citations omitted).
Manifest injustice cannot be found simply on the basis of the trial judge's determination that certain testimony is untruthful, unless the judge is prepared to answer "no" to the following question: "Am I satisfied that competent, satisfactory and sufficient evidence in this record supports the jury's finding that this defendant is guilty beyond a reasonable doubt?" In making this assessment, the judge must examine the totality of the case. All the facts and circumstances must be taken into account. An objective evaluation is required. There must be a real concern that an innocent person may have been convicted. Id.
The Court begins with a recital of several of the procedural facts relevant to the issues raised in the motions, and follows with the facts specific to the October 10th incident for which Defendant was convicted.
On November 20, 2000, the FBI opened an investigation into the allegation that defendant Cote had used excessive force against the person of Teodorovic while assisting Officer Reimer obtain control of the prisoner on October 10, 2000. Some five days earlier, the District Attorney's Office of Westchester County obtained an Indictment charging Paul Cote with assault arising out of the same facts. Thereafter, Special Agent Pamela A. McGovern of the FBI "monitored" the local prosecution which was handled by Assistant District Attorney Robert Neary, now a Judge of the New York Court of Claims. Reimer became a cooperating witness for the District Attorney and later for the Government in this case. He was granted immunity to testify against Cote in the New York Grand Jury. On May 17, 2001, ADA Neary reported to FBI Agent McGovern that "Mr. Teodorovic is still in a coma and is not likely to recover."
On July 13, 2001, a trial jury before Justice Perone in Westchester County Supreme Court acquitted Mr. Cote of the highest charge in the Indictment, Intentional Assault, but found him guilty of the lesser included offense of Reckless Assault against Teodorovic. The evidence and the witnesses in the state trial were substantially the same as those in this case. The New York Presentence Report recommended a non-custodial sentence. On September 20, 2001, Cote was sentenced to three months imprisonment and 100 hours of community service for the crime of Reckless Assault, in connection with the October 10, 2000 incident. His employment with the County was terminated. No appeal was taken and Mr. Cote served the sentence imposed upon him by the State of New York. On December 19, 2001, the FBI ordered a copy of the trial transcript of the state court proceeding.
On December 21, 2001, about fourteen months after his injuries were incurred, Zoran Teodorovic died. Following the autopsy, the Westchester County Medical Examiner certified the cause of death as "brain trauma with anoxic cerebral necrosis followed by fourteen months survival and persistent vegetative state (clinical) with chronic respiratory failure; sepsis and pneumonia. Homicidal assault. Homicide."
Immediately following Cote's sentencing by the state court, the U.S. Attorney's Office, which had been "monitoring" the state court proceedings through the FBI, did nothing. On May 2, 2002, the then attorney for Cote informed Assistant United States Attorney ("AUSA")
Neil M. Corwin that he had learned that Mr. Cote was the subject of a Federal inquiry and requested an opportunity to meet with the Government for the purpose of attempting to persuade the Government not to seek a Federal Indictment.*fn1 This telephone call was confirmed by letter also dated May 2, 2002. See Corwin Decl., Exh. A.
Mr. Corwin did not meet with the attorney, and ceased to serve as Chief of the Civil Rights Unit of the U.S. Attorney's Office for this District in April 2003. His successor was AUSA Andrew W. Schilling, who participated in the trial before this Court. The record shows that from May 2002 to July 2005, nothing further happened until July 14, 2005, when Mr. Schilling was notified by the Department of Justice Trial Attorney assigned to the case, that the case was being closed. See Schilling Decl., ¶ 8. Mr. Schilling reports that the Trial Attorney offered to send out a routine closing notification letter. On July 26, 2005, Schilling advised Cote's then attorney "that the investigation was closed and that accordingly there was no need for the meeting he had requested in his letters." Id at ¶ 9.
Not content to leave sleeping dogs lie, the attorney initiated a call, which Mr. Schilling returned on August 9, 2005, in which the attorney asked for a letter confirming that the investigation was closed. On that date, Mr. Schilling contacted the assigned Trial Attorney in the Department of Justice, and conveyed this request. Id. at ¶ 10. The Trial Attorney then informed Schilling, contrary to what he was previously told, that the matter was still under review. Sometime thereafter, the U.S. Attorney's Office in this District, was advised by the Civil Rights Division in Washington of its decision that an Indictment should be sought in the case, and on October 3, 2005, Mr. Schilling was informed for the first time that the U.S. Attorney in this District concurred. Mr. Schilling contacted the Defendant's then attorney on the same day. In that conversation, he advised the attorney that he had been "mistaken" when he advised him that the investigation was closed.
Because the statute of limitations would expire on Friday, October 7, 2005, Mr. Schilling, that same day (October 3, 2005), directed Assistant United States Attorney Ramon Reyes to contact Cote's then attorney to "request"a tolling agreement. This agreement, the first of two, was initiated by the Government. Schilling informed Reyes that "in the event that [the attorney] did not agree to enter into a tolling agreement, time should be reserved in the Grand Jury for later that week so that we would retain the option of seeking an Indictment before the five year statute of limitations would run." Id. at ¶ 15. Time was reserved in the Grand Jury for the morning of Thursday, October 6, 2005, in the event that the tolling agreement would be refused.
The Government agreed as consideration for the tolling that it would not seek to claim that death resulted from the acts charged. On October 6th, the last day before the statute would have run, Cote and his then attorney signed the first of two tolling agreements, terminating on January 5, 2006. There are disputed issues surrounding the first tolling agreement, which are discussed below. Under the circumstances, it is far from certain that an Indictment could have been obtained in such short order if the tolling agreement had been refused. There was the possibility that the Grand Jury would lack a quorum due to illness or absence of Grand Jurors, or that the assigned FBI Special Agent, who would presumably give the Grand Jury a hearsay report of what had happened to Teodorovic, would be unavailable to read from the 302's.
After the first tolling agreement was signed, meetings took place locally at which Cote's then attorney attempted to convince the Government that his client should not be re-prosecuted. The second tolling agreement "for the period beginning January 5, 2006 and terminating ninety days thereafter on February 15, 2006 [sic]" was sought by Defendant on December 8, 2005. See Schilling Decl., Exh. J. No issue is raised as to the validity or propriety of that second tolling agreement. The Indictment was filed February 6, 2006.
The Court now states the facts developed and proved at trial viewed most favorably to the Government, together with prior facts of record which bear upon the interests of Justice in this case.
On October 10, 2000, during the 3:00 P.M. to 11:00 P.M. shift, two Correction Officers were in charge of the 1-G Housing Unit at the Westchester County Jail in Valhalla, New York. One was Correction Officer John Mark Reimer, the Government's key witness in this trial, and the other was Correction Officer Meade. The 1-G Housing Unit has twenty-eight (28) individual cells, fourteen (14) on the West side of the hallway or tier, and fourteen (14) on the other. The doors to the cells are controlled by electric sliding doors separately operated by switches located in the so-called "Bubble," or Security Control Center at the end of the tier. There is an adjacent day room area where inmates enjoy television and play board games, as well as a sally port.
The persons housed on Tier 1-G at the relevant time were for the most part pre-trial detainees, state and federal, and persons awaiting sentence or transfer to other institutions. The prisoners varied as to the extent of their criminality and prior records, but in Tier 1-G, the Administration had gathered together inmates requiring an additional degree of supervision because of subclinical psychiatric and related problems. In addition to the two Correction Officers, there were two "trustee" inmates from other parts of the facility who were assigned to observe with particular attention towards suicide watch and assistance in management of the Tier.
Mr. Zoran Teodorovic was in Cell No. 8. He had been on the Tier for five days.
Mr. Teodorovic, age 46, was six feet tall and weighed approximately 180 pounds. Gov. Exh. 5. He was in custody from a local court, under a pending charge of trespass, for failure to make $250.00 bail. Defendant did not know this or anything else about Mr. Teodorovic, including whether he was regarded as dangerous. Neither did Reimer.
It was normal operation for the prisoners on either the even or the odd side of the Tier, but not both sides at once, to come out of their cells for a period of two hours of recreation in the day room, followed by the other side. During the shift, the entire block would be locked down at 10:00 P.M., as well as prior to 5:00 P.M., and the evening meal.
The first witness for the Government was John Mark Reimer, a Sergeant in the Westchester County Department of Corrections, who had both state and federal transactional immunity, and who had also testified as the State's principal witness in the prior state prosecution. Sergeant Reimer testified under immunity that on October 10, 2000, he was on duty as a Correction Officer in the Westchester County Jail and was assigned to Block 1-G, which contained inmates who require more active supervision because of mental health issues. He testified that 1-G was considered a "step-down block" from the Forensic Unit where inmates have been "stabilized."
At approximately 4:30 P.M., Reimer authorized Officer Meade to leave the block to pick up Chinese takeout food and defendant Officer Cote took over from another job location to cover for Officer Meade. Shortly before 5:00 P.M., Reimer directed one or both of the trustees to clean out inmate Teodorovic's cell because Teodorovic had refused to do so. The cell was filthy, cluttered with papers and smelled of urine. As noted earlier, Cote had no familiarity with anybody on the Tier, and Reimer had neither spoken to Teodorovic, nor had any special knowledge about him. While the trustee or trustees were cleaning his cell, Teodorovic stood in the hallway. After the cell cleaning was finished, Reimer, through a loudspeaker from the Bubble, gave Teodorovic an order to return to his cell. Apparently, this order was given twice. When Teodorovic refused to comply, Reimer left the Bubble to deal with the problem. When he told Teodorovic face-to-face to return to his cell, Reimer was "sucker-punched" by Teodorovic in his lower cheek area "hard enough to close [his] jaw and. . .[he] bit the inner portion of [his] cheek inadvertently and it created a little blood blister." Tr. at 70.
Reimer grabbed Teodorovic and started to take him down in bear hug fashion. Reimer was six feet two inches tall and weighed approximately 270 pounds. Observing the fight from the Bubble, Cote ran to the aid of Reimer. Reimer described that Teodorovic was at that time "wiggling, appeared to be struggling, appeared uncomfortable." Id. at 74. He then testified that "Officer Cote came up along side me and he began to punch inmate Teodorovic in the chest and the head." He testified that he recalled two punches to the head, two punches to the chest and one slap to the rear of the chest area. The punches were with a closed fist and the slap was open-handed. After Reimer said "enough," Cote got up to his feet and began to kick Teodorovic. The kicks began in the chest area and then proceeded to the head. He described two direct kicks to the chest and one direct stomp to the face and two direct kicks to the face. Id. at 74-76. At the same time, Reimer testified, Defendant was telling Teodorovic "You never hit an officer -- don't you ever hit a Correction Officer again." Id. at 77. Reimer testified that he was kneeling above Teodorovic "at the waist area, in the middle of his body," that Teodorovic's left hand was underneath his body, and his right hand was free "which I was holding down." Tr. at 74. Although Teodorovic was "still wiggling" in the course of this application of force by Cote, there came a time when he stopped moving and lost consciousness, thereafter remaining in a coma for approximately fourteen months, until he died on December 21, 2001.
With regard to the altercation prior to Cote's arrival on the scene, Reimer testified as follows:
Q: Did you see Mr. Teodorovic's head make contact with the floor?
This was in contrast to his testimony in the ...