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United States v. Bell

October 20, 2009

UNITED STATES OF AMERICA, APPELLANT,
v.
JOHN W. BELL, JR., DEFENDANT-APPELLEE.*FN1



SYLLABUS BY THE COURT

Appellant United States of America appeals from an October 23, 2008 order of the District Court (Alfred V. Covello, Judge) granting defendant-appellee John W. Bell, Jr., a new trial after a jury found defendant guilty of (1) attempted murder of a federal officer in violation of 18 U.S.C. § 1114, (2) assaulting, resisting, opposing, impeding or interfering with a federal officer, in violation of 18 U.S.C. § 111(a)(1), (b), and (3) discharging a firearm in connection with these crimes in violation of 18 U.S.C. § 924(c)(1)(A)(iii). After receiving authorization to appeal from the Solicitor General of the United States, the government filed a timely notice of appeal. We hold that the District Court erred in ordering a new trial because (1) the District Court's jury instructions on intentional conduct were legally correct and did not constitute plain error warranting a new trial, (2) the District Court's use of a general verdict form was not plain error and thus not a basis for ordering a new trial, (3) the District Court rested its decision to grant a new trial on clearly erroneous factual findings, and (4) the District Court failed to evaluate the entire trial record in ruling on defendant's motion for a new trial. Accordingly, the District Court's order for a new trial is reversed and the case is remanded for sentencing.

Per curiam.

Argued: October 7, 2009

Before: MINER and CABRANES, Circuit Judges, RAKOFF, District Judge.*fn2

Appellant United States appeals from an October 23, 2008 order of the District Court (Alfred V. Covello, Judge) granting defendant-appellee John W. Bell, Jr., a new trial after a jury found Bell guilty of (1) attempted murder of a federal officer in violation of 18 U.S.C. § 1114, (2) assaulting, resisting, opposing, impeding or interfering with a federal officer, in violation of 18 U.S.C. § 111(a)(1), (b), and (3) discharging a firearm in connection with these crimes in violation of 18 U.S.C. § 924(c)(1)(A)(iii).

BACKGROUND

In reviewing the government's appeal, we must view all of the evidence in the light most favorable to the government, crediting every inference that could have been drawn in the government's favor. Where there are conflicts in the testimony, we must defer to the jury's resolution of the weight of the evidence and the credibility of the witnesses.

United States v. Ware, 577 F.3d 442, 447 (2d Cir. 2009) (citations omitted). We must uphold the conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). We therefore describe the relevant facts below in the light most favorable to the government.

The charges against Bell stem from an altercation that took place on the evening of October 1, 2007, when members of a Federal Bureau of Investigation ("FBI") task force attempted to execute a search warrant at Buzz's Mobil in Bridgeport, Connecticut, as part of an investigation into a gambling "organization." FBI agents arrived at Buzz's Mobil in unmarked cars around 8:30 p.m. As they approached the station office, the agents saw one employee, Fidel Lemus, near the door. Special Agent Mark Grimm and Detective Kevin Hammel ("Hammel") saw a second person, defendant Bell, standing near the back of the office, to the right of a soda machine. Detective Hammel approached the office with Detective Scott Murray ("Murray"), who had removed his gun from its holster, but held it slightly behind his leg and pointed at the ground. Murray was dressed in street clothes, gloves, and a baseball cap, as well as a bullet-resistant vest with "POLICE" written across the front and the back in large yellow letters, with a police badge clipped to the front of it. The other officers similarly wore street clothes and a jacket or vest with the same "POLICE" inscription across the front and back. As Hammel and Murray approached the office they announced, "police, police with a search warrant," and "police with a warrant" several times. J.A. 179-84, 627-28. Lieutenant Arthur Kohloff and Agent Grimm also approached the office from the right and to the rear of Murray and Hammel. The officers instructed Lemus to put his hands up, which Lemus did, and Murray patted down Lemus's clothing for weapons. As Murray placed Lemus in Kohloff's custody, he noticed defendant Bell standing inside the office.

Murray stepped into the office again stating, "police, police with a warrant, police with a search warrant." J.A. 186-87, 246-47. Hammel joined Murray in also announcing "police, police," at which point Bell turned toward the back of the office and started walking away from the officers. Hammel repeatedly yelled, "stop, police, police, stop," J.A. 631, 633, 635, and Murray began to follow Bell, repeating his statement, "police with a search warrant." J.A. 187-88. Bell stopped short of the door to a back room in the office and turned partially toward Murray and Hammel so that his left side faced the officers, J.A. 188, 633-35, and put his hand in his pocket on his right side, which was closer to the back wall. J.A. 190. Murray yelled, "get your hand out of your pocket," J.A. 188, but Bell did not comply. Murray stopped, standing face-to-face with Bell and saw that Bell had his coat around his right hand near his hip. Murray yelled, "show me your hand," and raised his gun to point it at Bell, who then pulled a gun out and pointed it at Murray. J.A. 190. In response, Murray yelled "gun" to alert his fellow officers, and dove to the left and fired his gun at least once, but possibly twice. J.A. 190-92, 259-60, 632-35. Defendant also fired his gun twice at Murray. J.A. 192, 235-36, 244, 635. Other officers fired in the direction of Bell as well.

The other officers called for assistance, took cover, and ultimately guided Murray out of his crouched hiding position. Bell remained barricaded in the back room for approximately ten minutes while the officers attempted to persuade him to put his gun down and exit the office. J.A. 638B, 659-60, 681. Bell first refused to emerge, insisting that he see a Bridgeport police officer in uniform. He finally left the office, though he was still carrying his gun. Upon being commanded to drop the gun, J.A. 638A, Bell finally placed it on the desk just inside the office door and walked into the parking lot. J.A. 24, 471-72, 476, 681-82, 695-96. The officers took Bell into custody and searched him, recovering ammunition, a gun permit, and $140 cash, among other things. Bell was taken to the hospital because he had been struck by a bullet in his wrist and in his upper arm.

A federal grand jury sitting in Bridgeport, Connecticut indicted Bell on four counts: (1) attempted murder of a federal officer; (2) attempted murder of a person assisting a federal officer, both in violation of 18 U.S.C. § 1114; (3) assaulting, resisting, opposing, impeding, or interfering with a federal officer, in violation of 18 U.S.C. § 111(a)(1), (b); and (4) discharging a firearm in connection with these crimes in violation of 18 U.S.C. § 924(c)(1)(A)(iii).

During the trial, the government called six of the nine members of the search warrant team. Bell testified on his own behalf, stating that he fired his gun at the officers in self-defense. J.A. 675-747. Bell was cross-examined as to his ownership of multiple firearms and his involvement, if any, with the gambling operation at his place of employment, and he in turn presented character evidence of his nonviolence. J.A. 749-54. After closing arguments, the District Court instructed the jury on the charges alleged and on the law of self-defense, which included an uncontested definition of "intentional" action. Bell agreed to the general verdict form provided by the District Court and the jury began its deliberations. After a short time, the jury convicted defendant of counts (1), (3), and (4), and acquitted him of count (2), attempted murder of a person assisting a federal officer.

Defendant moved for a judgment of acquittal or, in the alternative, for a new trial, under Rule 33 of the Federal Rules of Criminal Procedure, claiming that the verdicts were contrary to the weight of the evidence and that it would be a manifest injustice to allow the guilty verdicts to stand because he did not have the requisite intent. After hearing arguments on these motions, the District Court ...


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