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United States v. Krug

United States District Court, W.D. New York

March 8, 2017

COREY KRUG, Defendant.



         This case is before the Court on the Defendant's motion for severance. The Defendant, a Buffalo Police Officer, is charged with three counts of using excessive force, in violation of 18 U.S.C. § 242.[1] The facts underlying each excessive force count are set forth in detail in the Court's prior Decision and Order. See United States v. Krug, 198 F.Supp.3d 235 (W.D.N.Y. 2016). In short, the events at issue in the superseding indictment span just over four years-the oldest conduct occurred in August 2010, and the most recent occurred in November 2014. The Defendant seeks to sever the superseding indictment into three trials, with one trial for each excessive force count.

         In its prior Decision and Order, the Court directed the parties to file briefs addressing whether, if the Court severed Counts 1, 3, and 4 (the superseding indictment's excessive force counts), Federal Rule of Evidence 404(b) would allow the Government to prove the count of excessive force on trial by using evidence related to the other excessive force counts.

         For the reasons stated below, the Court concludes that Rule 404(b) would allow the Government to introduce such evidence for the limited purpose of proving whether the Defendant “willfully subject[ed]” any of the alleged victims in this case “to the deprivation of any rights . . . secured or protected by the Constitution.” 18 U.S.C. § 242. As a result, the Defendant could not be unfairly prejudiced by a joint trial because, in a joint trial, the Government could largely introduce the same evidence that it could introduce in three severed trials. Thus, there is an insufficient basis to sever Counts 1, 3, and 4. The Defendant's severance motion is therefore denied.


         A. Whether Rule 404(b) allows the Government to prove a violation of 18 U.S.C. § 242 with evidence of other alleged violations of § 242

         Rule 404(b) allows the Government to use evidence of a prior “crime, wrong, or other act” to prove something other than a defendant's propensity to commit a particular act. Fed.R.Evid. 404(b)(1). The Second Circuit “take[s] an inclusive approach to other acts evidence: it can be admitted for any purpose except to show criminal propensity.” United States v. Germosen, 139 F.3d 120, 127 (2d Cir. 1998) (quotation marks omitted). These purposes include “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2). Rule 404(b)'s primary limit on relevant other-acts evidence comes from Rule 403: relevant other-acts evidence is inadmissible only if “the trial judge concludes that its probative value is substantially outweighed by its potential for unfair prejudice.” Germosen, 139 F.3d at 127.

         The Government argues that if the excessive force counts in this case were severed into three trials, Rule 404(b) would still allow the Government to prove the excessive force count on trial by introducing evidence related to the other excessive force counts. Specifically, the Government argues, evidence that the Defendant used excessive force on a prior occasion could be used to prove the Defendant's motive or plan; his intent; his absence of mistake or accident; or his knowledge. See Docket No. 44 at 9.

         To determine whether the Government may rely on these Rule 404(b) exceptions to introduce other-acts evidence, the Court must examine each party's theory of the case. In other words, “relevance is not the end of the inquiry: evidence admitted under 404(b) must be relevant to an issue in dispute.” United States v. Scott, 677 F.3d 72, 81 (2d Cir. 2012) (emphasis in original). Based on the Court's understanding of the facts and the parties' arguments, the Defendant will not claim that his use of force was mistaken or accidental. To the contrary, defense counsel represented at oral argument that the Defendant will not dispute whether he intended to use force; rather, the Defendant will argue that the force he used was reasonable under the circumstances. Thus, Rule 404(b) does not allow the Government to introduce other-acts evidence in this case to prove lack of accident or mistake. See United States v. Bell, 516 F.3d 432, 442 (6th Cir. 2008) (“[F]or other acts evidence to be admissible for the purpose of showing absence of mistake or accident, the defendant must assert a defense based on some type of mistake or accident.”) Compare United States v. Livoti, 196 F.3d 322, 326 (2d Cir. 1999) (in § 242 prosecution, affirming decision to admit, pursuant to Rule 404(b), evidence that the defendant had choked another arrestee in the past “because it was relevant to rebut [the defendant's] assertion that he choked [the victim] unintentionally”).

         Intent and knowledge, however-which are both proper grounds for introducing other-acts evidence under Rule 404(b)-are both relevant to what will clearly be a critical issue at trial: the Defendant's state of mind. The statute charged in Counts 1, 3, and 4-18 U.S.C. § 242-makes it a crime, when acting “under color of law, ” to “willfully subject[] any person . . . to the deprivation of any rights . . . secured or protected by the Constitution.” 18 U.S.C. § 242 (emphasis added). The pattern jury instruction for § 242 illustrates the Supreme Court's expansive interpretation of the word “willfully”: to determine a defendant's state of mind, the instruction allows the jury to consider, among other things, whether the defendant “act[ed] in open defiance or in reckless disregard of a known and definite federal right.” L. Sand, et al., Modern Federal Jury Instructions: Criminal ¶ 17.01, Instruction 17-6 (2014).[2] It instructs the jury that the defendant's intent “need not be expressed, ” but may, instead, “be reasonably inferred from the surrounding circumstances of the act.” Id. And, as is most relevant here, it instructs the jury that the jury “may look at the defendant's words, experience, knowledge, acts and their results in order to decide th[e] issue of willfulness.” Id. Put simply, the Supreme Court's interpretation of the word “willfully” in § 242 opens the door to a variety of evidence that might make the Defendant's intent “more . . . probable.” Fed.R.Evid. 401(a). Section 242's willfulness element also puts the Defendant's knowledge in issue, at least to the extent that the Government's theory of willfulness involves showing that, on prior occasions, the Defendant was made aware that the Constitution prohibits the use of excessive force in affecting an arrest.[3] Rule 404(b) therefore allows the Government to introduce evidence that, on a prior occasion, the Defendant allegedly used excessive force to show that, on a later occasion, the Defendant's alleged use of excessive force was “willful[].” 18 U.S.C. § 242. See, e.g., United States v. Boone, 828 F.3d 705, 711-12 (8th Cir. 2016) (in § 242 prosecution, affirming admission of other-acts evidence to prove willfulness because “[b]y testifying that he did not intend to hurt [the victim] or kick him in the head, but was instead trying to assist his fellow officers in securing [the victim], [the defendant] placed his state of mind squarely at issue and rendered evidence of his prior use of unreasonable force probative of his intent, knowledge, motive, and absence of mistake in his use of force against [the victim]”); United States v. White, 68 F.App'x 707, 710-11 (7th Cir. 2003) (in § 242 prosecution, affirming admission of other-acts evidence to prove willfulness because the other-acts evidence “demonstrated . . . that [the defendant] was on notice that the use of unnecessary force under color of law is illegal and, more specifically, that unreasonable force in response to non-threatening verbal comments was in excess of his authority”).[4]

         The Defendant's primary response to the Government's argument is that his intent is not at issue in this case. At oral argument, defense counsel stated that the Defendant “will never say that he did not intend to use physical force. He clearly did intend to use physical force. It wasn't inadvertent, unintentional or negligent. He intended to use physical force, but it was appropriate under the circumstances.” Tr. 10:9-13 (Docket No. 54). This argument has some appeal, but it relies on an understanding of § 242's scienter element that is inconsistent with the case law interpreting § 242.

         Section 242 is a specific intent crime-not a general intent crime. It requires the Government to prove that a defendant had “a specific intent to deprive a person of a federal right.” Screws v. United States, 325 U.S. 91, 103 (1945) (plurality) (interpreting predecessor to § 242). See also Id. at 107 (noting that the Supreme Court's “construction of the word ‘willfully'” provides “that it [is] not sufficient that [the defendants] had a generally bad purpose. To convict it was necessary for [the jury] to find that [the defendants] had the purpose to deprive the [victim] of a constitutional right”); United States v. Reese, 2 F.3d 870, 885 (9th Cir. 1993) (“[A] mere intention to use force that the jury ultimately finds unreasonable-that is, general criminal intent-is insufficient for conviction under section 242.”) Thus, § 242 does not merely proscribe the use of excessive force; rather, it proscribes the use of excessive force with the intent to violate the alleged victim's constitutional right to be free of such force.

         The Defendant's concession, however, appears to be only that he “intended to do the act in question”-that is, use force against each of the alleged victims-and that he “intended the reasonable and probable consequences of that act.” United States v. Francis, 164 F.3d 120, 121 (2d Cir. 1999) (explaining difference between general and specific act crimes). That concession does not carry with it an admission that the Defendant used unreasonable force, nor does it carry with it an admission that the Defendant intended to violate the alleged victims' right to be free of such force. Both are essential elements of a § 242 charge. See Reese, 2 F.3d at 885 (affirming district court's instruction “that the jury was required to find that [the defendants] intended to use unreasonable force-that is, that they intended not only the force, but its unreasonableness, its character as ‘more than necessary under the circumstances.' This is precisely the specific intent required by Screws.”) (emphasis in original). Indeed, defense counsel's argument that the Defendant's use of force “was appropriate under the circumstances” (Tr. 10:12-13) demonstrates the limited scope of the Defendant's concession. If the Defendant intends to argue at trial that his use of force was reasonable, then his concession cannot be understood to mean that he had the “specific intent to deprive a person of a federal right” to be free of unreasonable force. Screws, 325 U.S. at 103.

         In short, “intent is a material issue in this case, ” and, as a general matter, the Defendant may not concede the issue away: “the prosecution is entitled to establish [the Defendant's intent] by using admissible evidence of their choosing.” United States v. Brown, 250 F.3d 580, 585 (7th Cir. 2001). See also United States v. Zackson, 12 F.3d 1178, 1182 (2d Cir. 1993) (“Where a defendant claims that his conduct has an innocent explanation, prior act evidence is generally admissible to prove that the defendant acted with the state of mind necessary to commit the offense charged.”) In a severed trial, Rule 404(b) would therefore allow the Government to use ...

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