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
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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.
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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.
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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.
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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
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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.
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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
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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
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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
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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.
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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.
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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)
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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
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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
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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.
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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
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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.
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