United States v. Crochiere

United States Court of Appeals
For the First Circuit

No. 97-1555

UNITED STATES OF AMERICA,

Appellee,

v.

JAMES A. CROCHIERE,

Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Stahl, Circuit Judge,

Cyr, Senior Circuit Judge,

and Lynch, Circuit Judge.

Marc D. Padellaro, with whom Joseph W. Monahan, III and

Mary Jane Walsh were on brief,for appellant.

S. Theodore Merritt, Assistant United States Attorney,

with whom Donald K. Stern, United States Attorney, was on

brief, for appellee.

November 18, 1997

LYNCH, Circuit Judge. James A. Crochiere, a
LYNCH, Circuit Judge.

correctional officer at the Worcester County Jail and House

of Correction, was indicted on charges of violating and

conspiring to violate the civil rights of a pre-trial

detainee at the jail. See 18 U.S.C. 2, 241, 242.

Crochiere was charged with the act of and conspiracy to pour

boiling water on the groin and upper thigh of Jose Nieves,

who had been arrested on the charges of murdering a young

girl. A jury found Crochiere guilty of the conspiracy count

and acquitted him of the substantive count.

Crochiere makes three arguments on appeal. He

challenges the district court's denial of his motion for a

jury view of the scene of the crime. He contends that a

portion of the district court's jury instructions on the

conspiracy count was erroneous in that the instructions

charged that no "overt act" is required under the criminal

civil rights conspiracy statute, 18 U.S.C. 241. He also

argues that the evidence was insufficient to convict him on

the conspiracy count. We affirm and hold that 18 U.S.C.

241, the civil rights conspiracy statute, does not require an

overt act.

I.

We state the facts in the light most favorable to the

verdict. See United States v. Montas, 41 F.3d 775, 778 (1st

Cir. 1994). On April 18, 1993, Jose Nieves was brought to

-2-
2

the jail to await trial on charges that he murdered a twelve

year old girl. Nieves, a heroin addict who was undergoing

detoxification, became highly agitated and unruly, banging

his head against the bars of his cell. Nieves cut open his

forehead. Several correctional officers, Crochiere among

them, came to Nieves's cell to restrain him. The officers

handcuffed Nieves and strapped him into a restraint chair.

Nieves strongly resisted; the officers placed a blanket over

Nieves's head to prevent him from spitting. The first time

the officers placed Nieves in the restraint chair, he was

able to free himself from the arm straps. The second attempt

at restraint was more successful, and once Nieves was

securely in the chair he was no longer a threat to himself or

to the officers.

Rodney Lambert was another pre-trial detainee; he was

indicted on the same federal civil rights charges as

Crochiere. He pled guilty, cooperated with the government

and testified against Crochiere. His cell was located three

cells down from Nieves's cell. Lambert had a hot pot in his

cell, and after Nieves was restrained and the commotion died

down, Lambert began boiling water for soup. Crochiere

approached Lambert's cell and asked Lambert if he had any

salt. Crochiere wanted to rub salt into the open wound on

Nieves's forehead. Lambert said that he did not, but offered

Crochiere an alternative weapon: a cup of boiling water.

-3-
3

Crochiere initially declined the offer, but soon returned and

requested the boiling liquid. Lambert poured a cup of

steaming water for Crochiere, who took the cup and walked

toward Nieves's cell. Moments later, Nieves screamed out in

pain, exclaiming that "[t]hey burned my pee pee," and that he

was hurt. Following these screams, another voice said, "Now

you know how the little girl felt."

Among the government's witnesses who testified to these

events were Michael Robichaud, a correctional officer on duty

on the evening of April 18, 1993; Foimai Tau, a Unit

Supervisor on duty the same evening; and Scott Croteau,

Anibal Antuna, and Rodney Lambert, three inmates whose cells

were located in the same tier as Nieves's cell.

Nieves complained to Officer Robichaud of pain in his

groin. Robichaud related this information to Lieutenant Tau,

the Unit Supervisor. Lieutenant Tau went to see Nieves, who

asked to see a nurse because someone had poured hot water on

him. Lieutenant Tau summoned Nurse Elaine Gustafson, who

spoke with Nieves but, being at the end of her shift, refused

to examine him. Nurse Dorothy Hester, the supervising nurse

at the jail, did examine Nieves the following morning.

Because Nieves told her he had an injury in his groin area,

she examined that area and observed a second-degree burn with

blisters. The burn extended down to his inner thigh area,

and upwards to his testicles.

-4-
4

On April 20, two days after the burning, Nieves was

taken to Bridgewater State Hospital for a psychological

examination as to his competence to stand trial for the

charge of murder. A correctional officer at Bridgewater

State conducted a routine strip search of Nieves and observed

blisters and injury in Nieves's groin area. Pursuant to

routine practice the officer photographed the injury, and the

photograph was later sent, along with a report, to the

Worcester County Sheriff's Office. Kevin Foley, Assistant

Deputy Superintendent of the Worcester County Sheriff's

Office, then commendably initiated an investigation of the

burning. Foley requested reports regarding Nieves's injury

from several individuals, including Crochiere, Tau, and

Gustafson. All of them denied that Nieves had been burned,

or that Nieves had complained of pain and of being burned by

a correctional officer. The following year, around September

of 1994, the Federal Bureau of Investigations began an

investigation into the events surrounding Nieves's injury,

which, in turn, led to the prosecution of this case. Nurse

Gustafson and Supervisor Tau eventually testified that they

had previously reported falsely on the events of April 18,

1993, and stated that Nieves actually did complain of pain in

his groin and told them that he had been burned with hot

water.

II.

-5-
5

Jury View

On the second day of trial, Crochiere filed a motion

for a jury view of the lower left tier of cells at the jail,

the location of these events. Crochiere argued that it was

only by viewing the tier of cells that the jurors could

properly assess the validity of the statements made by

several of the witnesses -- specifically inmates Croteau and

Lambert -- about what they saw and heard on that night. The

district judge initially deferred the decision on the view,

so that he could hear more of the evidence and "have a better

sense of whether a view [would be] important and worthwhile

in the context of the case." The court ultimately denied the

view, reasoning that it would be "not just an unnecessary use

of time, but actually potentially confusing and misleading,

because neither Croteau nor Lambert said that they could see

anybody going into Nieves's cell or see anything that was

going on in the cell."

The decision to permit a view is entrusted to the sound

discretion of the trial court. See United States v.

Pettiford, 962 F.2d 74, 76 (1st Cir. 1992); United States v.

Passos-Paternina, 918 F.2d 979, 986 (1st Cir. 1990). A court

generally acts within that discretion in denying a motion for

a view when there is sufficient evidence describing the scene

in the form of testimony, diagrams, or photographs. See

Pettiford, 962 F.2d at 76; United States v. Drougas, 748 F.2d

-6-
6

8, 31 (1st Cir. 1984). In making this determination, the

court may consider such factors as the orderliness of the

trial, whether the jury would be confused or misled, whether

it would be time-consuming or logistically difficult, and

whether cross-examination had been permitted regarding the

details of the scene. See id.; Pettiford, 962 F.2d at 76;

Passos-Paternina, 918 F.2d at 986; Bundy v. Dugger, 850 F.2d

1402, 1422 (11th Cir. 1988).

Crochiere made a non-frivolous argument in support of

the view as to the events in Nieves's cell which underlay the

violation of civil rights charge, as opposed to the

conspiracy charge. Inmates Croteau and Lambert did at times

testify to having been able to see beyond what was happening

in front of their own cells. For example, Lambert testified

that he could see officers walking into and out of Nieves s

cell, and that he could see Crochiere "in front of one of the

cells to [his] right." The evidence in this case was

somewhat inconsistent, and the credibility of each witness s

story as to what he saw and when he saw it was critical. The

average juror has not seen a jail cell block, and might well

have difficulty understanding the layout and the ability (or

inability) of inmates to see up and down the corridor where

Nieves's cell was located. Crochiere contended that

photographs and charts could not do adequate justice to the

layout and spacial arrangements of the cell block. Cf.

-7-
7

Pettiford, 962 F.2d at 76 (upholding denial of view where

view would not have provided clearer portrayal of scene than

photographs did).

It is also true, as the district judge noted, that

neither Croteau nor Lambert testified that they could see

into Nieves's cell. Most of the inmates' testimony was of

what they heard, and what they saw happen in front of their

own cells. A view would not have helped to discredit this

testimony. Additionally, the defendant had ample opportunity

to cross-examine the various government witnesses on their

ability to perceive what they claimed to see. The question

of the view was not an easy one, and the district judge's

decision was considered.

In light of the acquittal on the substantive civil

rights charge, we need not decide the question of whether

there was an abuse of discretion in denying the view. Any

error Crochiere may claim in this ruling was harmless. "In

the usual case, a non-constitutional evidentiary error will

be treated as harmless if it is highly probable that the

error did not contribute to the verdict." See United States

v. Rose, 104 F.3d 1408, 1414 (1st Cir. 1997). The government

bears the burden of persuasion in a harmless error analysis.

See id. The view was relevant primarily to the

substantive 242 Count, of which Crochiere was acquitted,

and not to the conspiracy count. The evidence was more than

-8-
8

adequate to support the conspiracy count that Crochiere took

boiling water from Lambert after saying he wanted a way to

hurt Nieves. View or no view, Lambert plainly was competent

to testify about what he did in his own cell and what he and

Crochiere said there. Inmate Croteau also testified that he

saw Crochiere walk past his cell in the direction of

Lambert's cell, which was directly to the left of Croteau's

cell. Croteau stated that he then heard Crochiere say to

Lambert, "Can I get some of that?" and then observed

Crochiere walk past Croteau's cell again, in the direction of

Nieves's cell, this time carrying a cup of steaming liquid.

A view would not have undercut any of this testimony, all

directly relevant to the conspiracy count.

Crochiere argues that the view was relevant to the

conspiracy count because it directly implicated the

witnesses' credibility. Although a view might have had some

indirect impact on the jury's assessment of witness

credibility, Crochiere had ample opportunity to, and did,

impeach the witnesses' credibility in a variety of ways at

trial. The jury nevertheless chose to believe the evidence

supporting the conspiracy count, and a view was unlikely to

have altered this outcome.

Jury Instructions: Overt Acts

Crochiere argues that the district court gave erroneous

jury instructions on the elements of a conspiracy under

-9-
9

241, because the court stated that the government was not

required to prove the existence of an overt act in

furtherance of the conspiracy. Crochiere did not submit any

proposed instructions on 241, nor did he object to the

absence of an overt act instruction when specifically

questioned on this issue by the district judge. In these

circumstances, the standard of review is plain error. See

United States v. Alzanki, 54 F.3d 994, 1003 (1st Cir. 1995).

Under this standard, the burden rests with Crochiere to

establish that "the error was 'clear,' in the sense that it

was 'obvious,' that it affected 'substantial rights,' and

that failure to vacate [the conviction] would result in a

'miscarriage of justice.'" Id. (citing United States v.

Olano, 507 U.S. 725, 731-38 (1993)).

There was no error, plain or otherwise, in Judge Wolf's

instructions to the jury. Section 241 makes it unlawful for

two or more persons [to] conspire to injure,
oppress, threaten, or intimidate any person in any
State, Territory, Commonwealth, Possession, or
District in the free exercise or enjoyment of any
right or privilege secured to him by the
Constitution or laws of the United States, or
because of his having so exercised the same. . . .

18 U.S.C. 241.

The question whether 241 requires proof of an overt

act is an issue that the Supreme Court has not specifically

addressed. The Circuits have expressed conflicting views on

the question. The Ninth Circuit has held that 241 does not

-10-
10

require proof of an overt act. See United States v.

Skillman, 922 F.2d 1370, 1375-76 (9th Cir. 1991). The Fifth

Circuit has inconsistently stated both that 241 does not

require an overt act, see United States v. Morado, 454 F.2d

167, 169 (5th Cir. 1972), and that 241 does require proof

of an overt act, see United States v. Greer, 939 F.2d 1076,

1099 (5th Cir. 1991); United States v. McKenzie, 768 F.2d

602, 606 (5th Cir. 1985); United States v. Kimble, 719 F.2d

1253, 1256 (5th Cir. 1983). In none of the Fifth Circuit

cases, however, was the question a central issue in the case.

The Sixth Circuit has stated, also in dictum, that 241 does

require proof of an overt act. See United States v. Brown,

49 F.3d 1162, 1165 (6th Cir. 1995).

This Circuit has never decided the question. The

Supreme Court case of United States v. Shabani, 513 U.S. 10

(1994), we think, requires a holding that 241 contains no

overt act requirement. In Shabani, the Court found that

there was no overt act requirement where the language of the

drug conspiracy statute, there 21 U.S.C. 846,1 did not

require proof of an overt act, and the common law of

conspiracy at the time the statute was enacted did not

1. 21 U.S.C. 846 provides:

Any person who attempts or conspires to commit any
offense defined in this subchapter shall be
subject to the same penalties as those prescribed
for the offense, the commission of which was the
object of the attempt or conspiracy.

-11-
11

require an overt act. Accord United States v. Paiva, 892

F.2d 148, 155 (1st Cir. 1989). The Supreme Court noted that

the language of the statute does not require "that an overt

act be committed to further the conspiracy, and [the Court

has] not inferred such a requirement from congressional

silence in other conspiracy statutes." Shabani, 513 U.S. at

13 (citing Nash v. United States, 229 U.S. 373, 378 (1913),

holding that no overt act is required for conspiracy

liability under the Sherman Act, and Singer v. United States,

323 U.S. 338, 340 (1945), holding that no overt act is

required for conspiracy liability under the Selective Service

Act). "Nash and Singer follow the settled principle of

statutory construction that, absent contrary indications,

Congress intends to adopt the common law definition of

statutory terms." Shabani, 513 U.S. at 13. And, the Court

continued, "the common law understanding of conspiracy 'does

not make the doing of any act other than the act of

conspiring a condition of liability.'" Id. at 13-14 (quoting

Nash, 229 U.S. at 378).2

The same analysis must apply to a construction of

241: absent a showing of legislative intent to the contrary,

we assume that Congress intended to adopt the common law

2. In response to Shabani's argument that the law does not
punish criminal thoughts, the Court replied that "[t]he
prohibition against criminal conspiracy, however, does not punish
mere thought; the criminal agreement itself is the actus reus . .
. ." Shabani, 813 U.S. at 16.

-12-
12

understanding of conspiracy when it used the word "conspire."

The legislative history of 241 reveals no contrary intent,

and at common law "it was neither necessary to aver nor prove

an overt act in furtherance of the conspiracy." Bannon v.

United States, 156 U.S. 464, 468 (1895), quoted in Shabani,

513 U.S. at 14.

In Shabani, the Court compared the language of the drug

conspiracy statute, which contains no express overt act

requirement, with the language of the general conspiracy

statute, 18 U.S.C. 371,3 which does contain an express

overt act requirement. The Court found this dichotomy

"instructive," noting that "[i]n light of this additional

element in the general conspiracy statute, Congress' silence

in 846 speaks volumes. After all, the general conspiracy

statute preceded and presumably provided the framework for

the more specific drug conspiracy statute." Shabani, 513

U.S. at 14.

The general conspiracy statute, 18 U.S.C. 371, with

its explicit overt act requirement, also preceded the

3. 18 U.S.C. 371 provides, in relevant part:

If two or more persons conspire either to commit
any offense against the United States . . . or any
agency thereof in any manner or for any purpose,
and one or more of such persons do any act to

effect the object of the conspiracy, each shall

[be subject to criminal penalties].

(emphasis added)

-13-
13

enactment of 241. The general conspiracy statute was

originally enacted by Congress in 1867, 14 Stat. 484, Add.

25, and remains essentially unchanged today. The civil

rights conspiracy statute, 18 U.S.C. 241, was enacted in

1870, "as part of what came to be known as the Enforcement

Act of 1870," United States v. Price, 383 U.S. 787, 801

(1966) (footnote omitted), and also remains in substantially

the same form today. By the time it enacted what is now

241, Congress had, when it wanted to import an overt act

requirement, made it explicit. But Congress chose not to do

so in 241. We recognize, but are not persuaded by, a

contrary argument that Congress, having placed the overt act

requirement in the general conspiracy statute, felt it

unnecessary to place such language in future conspiracy

statutes although it fully intended the overt act requirement

to apply. This argument cannot be squared with the Shabini

Court's interpretation of congressional silence.

Our conclusion that Congress did not intend to require

an overt act in 241 is bolstered by Supreme Court cases

that have emphasized the breadth of 241 and 242, and the

prosecutorial force that Congress intended to give them. In

Price, the Court discussed the history of 241 and 242.

The Court noted that the statutes

must be viewed against the events and passions of
the time. The Civil War had ended in April 1865.
Relations between Negroes and whites were
increasingly turbulent. Congress had taken

-14-
14

control of the entire governmental process in
former Confederate States.

. . . .

Within the Congress pressures mounted in
the period between the end of the war and 1870 for
drastic measures. . . . On May 31, 1870, the
Enforcement Act of 1870 [current 241] was
enacted.
In this context, it is hardly conceivable
that Congress intended 241 to apply only to a
narrow and relatively unimportant category of
rights.

Id. at 803-05 (footnotes omitted). Although the Price

Court's focus was on the rights that 241 protects and not

on the existence of an overt act requirement, its discussion

provides strong support for the proposition that the

Reconstruction Era Congress did not intend 241 to have a

narrow scope. Given this backdrop, it is difficult to

imagine that Congress could have intended a definition of

conspiracy in 241 that was narrower than the common law

definition of the term. Were we to judicially import on

overt act requirement, we would be narrowing the type of

activity that Congress intended to reach when it enacted

241. This we are not authorized to do.

Sufficiency of the Evidence

Crochiere's final challenge to his conviction rests on

the contentions that his conviction on the conspiracy count

cannot stand because it is inconsistent with the acquittal on

the substantive count, and that in any event the evidence on

-15-
15

the conspiracy count was insufficient for a finding of

guilty. We reject these claims.

Even if the verdicts were inconsistent, the Supreme

Court and this court have clearly stated that inconsistent

verdicts are no basis for setting aside a conviction.4 See

United States v. Powell, 469 U.S. 57 (1984) (reaffirming the

rule in Dunn v. United States, 284 U.S. 390 (1932), that

inconsistency of verdicts is not a basis for vacating a

conviction, and rejecting any exceptions to the rule);

United States v. Lopez, 944 F.2d 33, 41 (1st Cir. 1991)

(noting that "the Supreme Court has made it clear that

verdict inconsistency in itself is not a sufficient basis for

vacating a conviction.") (citing Powell, 469 U.S. 57).

In any event, the verdicts in this case are not

inconsistent because the elements of the two Counts are not

identical. Count One of the indictment charged that

Crochiere conspired with Lambert to violate Nieves's civil

rights, while Count Two charged Crochiere with the actual act

of violation -- the pouring of the scalding liquid onto

Nieves's lap. A guilty verdict on Count Two would have

required the jury to find that Crochiere himself poured the

4. Crochiere cites a Northern District of Illinois case for the
proposition that inconsistent verdicts may require setting aside
a conviction where those verdicts are based on charges with
"virtually identical elements." United States v. Infelise, 813

F. Supp. 599 (N.D. Ill. 1993). That case is not controlling
authority.

-16-
16

hot liquid on Nieves, and that Crochiere's actions

"result[ed] in bodily injury" to Nieves. The jury was not

required to find either of these elements beyond a reasonable

doubt to convict on the conspiracy count alone. The jury

could easily have concluded that there was not enough

evidence to prove beyond a reasonable doubt that Crochiere

was the individual who actually poured the scalding liquid

onto Nieves's lap. There was no eyewitness testimony

regarding this act. On the other hand, there was eyewitness

testimony on the conspiracy count. Lambert testified that he

gave the cup of steaming water to Crochiere intending that

the water be used to hurt Nieves. There was ample evidence

from which the jury could have concluded that Crochiere was a

willing participant, and harbored the same unlawful intent to

punish Nieves. Crochiere had previously asked Lambert for

salt to rub into Nieves's bleeding forehead. Croteau

testified that he heard Crochiere say "give me some of that"

to Lambert, and that moments later Crochiere walked past

Croteau's cell with a cup of steaming water in the direction

of Nieves's cell. Robichaud testified that he saw this

exchange occur between Lambert and Crochiere.

In sum, a jury could easily have found sufficient

evidence for a conviction on the conspiracy count, and

insufficient evidence for a conviction on the substantive

count, without these different outcomes being logically

-17-
17

inconsistent. This analysis also disposes of Crochiere's

claim that his motion for a judgment of acquittal should have

been granted by the district court because the evidence was

insufficient to support a finding of guilty on the conspiracy

count. See United States v. Lopez, 944 F.2d 33, 39 (1st Cir.

1991) (denial of motion for judgment of acquittal based on

insufficiency of evidence claim is subject to deferential

review).

Affirmed.

-18-
18