U.S. vs. James DiSantis

A jury convicted police officer
James DiSantis of depriving a suspect’s right to be free
from unreasonable seizure, in violation of 18 U.S.C. § 242.
On appeal, DiSantis raises several challenges to the jury
instructions given at his trial. Finding no reversible
error in the instructions, we affirm the conviction.

I. Background
On September 3, 2003, DiSantis, an officer of the Cicero,
Illinois Police Department, passed Jennifer Pine while
driving through Chicago. DiSantis knew of prior criminal
activity by Pine, as well as by her two passengers, Stephen
Roden and Robert Bertucci, and suspected that Pine was
either driving a stolen vehicle or heading to buy drugs.
Acting on this hunch, DiSantis followed Pine and pulled
her over on Central Avenue. According to Pine’s testimony,
DiSantis pulled her out of the car by the hair and
struck her multiple times in the head. DiSantis denied
pulling Pine’s hair or striking her, testifying that he only
raised his voice during the course of the traffic stop.
While this incident was transpiring, Hector Montes
passed DiSantis’s and Pine’s stopped cars and saw
DiSantis striking Pine. Hector continued south on Central
Avenue to his home, where he picked up his brother,
Richard Montes. The Montes brothers then drove back
north on Central Avenue on their way to view a construction
project at Millennium Park, which Richard
planned to record with his video camera. When they
passed the point of the traffic stop, Hector and Richard
saw that DiSantis and Pine were still at the scene, but
now joined by a second police car driven by Joseph
Melone, another Cicero police officer who worked
under DiSantis.

The Montes brothers pulled into a parking lot across
from the traffic stop, and Richard attempted to record the
incident with his video camera. After a few minutes,
Hector and Richard decided to leave the scene and continued on Central Avenue. But by that time, DiSantis and
Melone had spotted Hector’s SUV, and both officers
testified that they thought that the video camera that
Richard had pointed out of the passenger window was
actually a gun. The officers accordingly pursued and
pulled Hector over at a nearby hospital parking lot.

DiSantis approached the passenger side of Hector’s SUV.
According to the Montes brothers, DiSantis immediately
went up to the passenger window and wrestled the
video camera away from Richard. The Montes brothers
further testified that DiSantis began screaming at them
and demanding the camera’s “memory stick.” After
Hector told DiSantis that he did know anything about the
memory stick, DiSantis struck Hector with the camera
across the face and again on the head. DiSantis then
threw the camera on the ground and stepped on it.
DiSantis also conducted a pat-down search of both
men and squeezed their genitals.

After finding a bullet magazine in Hector’s SUV, DiSantis
arrested Hector for unauthorized possession of ammunition
and took him to the Cicero police station. Hector
was released later that evening, after which he went to
the hospital. DiSantis filed a police report on the
incident and submitted Richard’s video camera as evidence.

Based on these events, the government charged DiSantis
with willfully depriving Pine and Hector of their constitutional
right to be free from unreasonable seizure, in
1 18 U.S.C. § 242 provides, in pertinent part:
Whoever, under color of any law, statute, ordinance,
regulation, or custom, willfully subjects any person in
any State, Territory, Commonwealth, Possession, or
District to the 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 . . . .
violation of 18 U.S.C. § 242.1 The case proceeded to a sixday
jury trial at which several witnesses, including
DiSantis, testified about the Pine and Montes traffic stops.
The government capably impeached DiSantis’s testimony
using the police report that he filed on the Montes incident.
For example, after DiSantis denied grabbing Richard’s
video camera, the government read a portion of DiSantis’s
report stating that “Hector Montes, was clutching the . . .
video camera” and that “DiSantis removed the camera
from the suspect by force.” The government also noted
that DiSantis’s report catalogued the camera as “damaged,”
suggesting that DiSantis was lying when he
testified that he had not deliberately stepped on the
camera.

Following the presentation of evidence, the district court
held a jury instructions conference and reviewed the
parties’ proposed instructions. Citing the inconsistencies
between DiSantis’s testimony and his police report, the
government requested an instruction that the jury could
consider DiSantis’s prior inconsistent statements for their
truth, not merely for assessing DiSantis’s credibility. The
court agreed and gave, over DiSantis’s objection, the
government’s proposed instruction on the substantive
use of DiSantis’s prior inconsistent statements. The
court also gave the government’s proposed instructions
defining the “bodily injury” that triggers an enhanced
maximum sentence under 18 U.S.C. § 242, as well as the
“reasonable force” that an officer may justifiably use
against a suspect. Finally, the court rejected DiSantis’s
request for a “missing witness” instruction regarding
Robert Bertucci and Steven Roden, potential government
witnesses who, according to DiSantis, were controlled
by the government and unavailable to the defense.

The jury found DiSantis not guilty of violating Pine’s
constitutional rights but guilty of violating Hector’s
rights.

2 The district court imposed a sentence of 66
months’ imprisonment. On appeal, DiSantis challenges
the jury instructions on the use of his prior inconsistent
statements, the “bodily injury” element of § 242, and the
“reasonable force” that DiSantis could justifiably use
against Pine and Hector. DiSantis also challenges the
district court’s refusal to give his proposed “missing
witness” instruction.

II. Discussion
We review de novo a district court’s decision to give
or refuse a jury instruction “when the underlying assignment
of error implicates a question of law,” but “general
attacks on the jury instructions are reviewed for an abuse
of discretion.” United States v. Macedo, 406 F.3d 778, 787
(7th Cir. 2005) (citation omitted). The district court “is
afforded substantial discretion with respect to the precise
wording of instructions so long as the final result, read
as a whole, completely and correctly states the law.”
United States v. Gibson, 530 F.3d 606, 609 (7th Cir. 2008)
(quoting United States v. Lee, 439 F.3d 381, 387 (7th Cir.
2006)), cert. denied, 129 S. Ct. 1386 (2009). “Reversal is
proper only if the instructions as a whole are insufficient
to inform the jury correctly of the applicable law and the
jury is thereby misled.” United States v. Madoch, 149
F.3d 596, 599 (7th Cir. 1998).

A. Prior Inconsistent Statements

Based on the inconsistences between DiSantis’s testimony
and his police report, the district court instructed
the jury that they could consider DiSantis’s prior inconsistent
statements as substantive evidence. The given
instruction provided:

A statement made by the defendant before trial
that is inconsistent with the defendant’s testimony
here in court may be used by you as evidence of
the truth of the matters contained in it, and also
in deciding the truthfulness and accuracy of the
defendant’s testimony at trial.
This instruction is substantively identical to Instruction
3.10 from the Federal Criminal Jury Instructions of the
Seventh Circuit. Fed. Crim. Jury Instr. 7th Cir. 3.10 (1999).
(Although not pre-approved by the Seventh Circuit
Judicial Council for use in any particular case, these
published Circuit instructions, often referred to as “pattern”
instructions, reflect the work of judges and lawyers
with significant experience in criminal trials, id. at v, ix;
but of course, “pattern” instructions don’t fit every case,
see United States v. Hill, 252 F.3d 919, 922 (7th Cir. 2001).)

DiSantis argues that, by authorizing the jury to consider
his prior inconsistent statements for their truth, the
district court unduly emphasized his inconsistent statements
over those of other witnesses. He observes that the
court cautioned that the jury could not consider other
witnesses’ prior inconsistent statements for their truth
unless the witnesses made the statements “under oath.”
According to DiSantis, highlighting his prior, unsworn,
inconsistent statements as substantive evidence, while
limiting non-party witnesses’ prior inconsistent statements
to impeachment-only evidence, drew a prejudicial
distinction between him and other witnesses.

DiSantis is correct that the district court’s instructions
set different standards for the substantive use of his and
other witnesses’ prior inconsistent statements. DiSantis is
incorrect to suggest that this party-based distinction is in
any way legally erroneous. The Rules of Evidence plainly
distinguish between the prior inconsistent statements of
non-party witnesses and of party-opponents like DiSantis.
The former are admissible as non-hearsay, substantive
evidence only if “subject to cross-examination” and “given
under oath.” Fed. R. Evid. 801(d)(1)(A); United States v.
Dietrich, 854 F.2d 1056, 1061 (7th Cir. 1988) (“If a prior
inconsistent statement meets the [oath and cross-examination]
requirements of Rule 801(d)(1)(A) it may be admitted
as substantive evidence . . . . A prior inconsistent
statement that does not meet one of the criteria of Rule
801(d)(1)(A), however, may be used only for the purpose
of impeaching the witness.”). The latter are admissible as
substantive evidence even if not given under oath. Fed. R.
Evid. 801(d)(2)(A); United States v. Spiller, 261 F.3d 683,
690 (7th Cir. 2001) (“A party’s own statements offered
against him are considered admissions by a party-opponent,
and, as such, are not hearsay and are admissible
under Fed. R. Evid. 801(d)(2)(A).”). The district court’s
instruction on the substantive use of DiSantis’s prior
inconsistent statements was unquestionably a correct
statement of the law.

DiSantis also argues that his police report did not
qualify as an admission by a party-opponent, such that
the district court had no basis for instructing the jury on
the substantive use of his prior inconsistent statements.
However, under Rule 801(d)(2)(A), “written statements
may be admitted as non-hearsay against the party who
made the statement.” Thanongsinh v. Bd. of Educ., 462 F.3d
762, 779 (7th Cir. 2006); see also Spiller, 261 F.3d at 690
(characterizing a defendant’s handwritten ledgers indicating
the quantities of crack cocaine that he sold as
admissions by a party-opponent); United States v. Harvey,
117 F.3d 1044, 1049-50 (7th Cir. 1997) (concluding that
a defendant’s handwritten letters and diaries documenting his marijuana production were admissions by a
party-opponent). Applying that principle in a similar § 242
case arising out of a police officer’s use of excessive
force, the First Circuit concluded that the officer’s arrest
report fell within the hearsay exemption of Rule
801(d)(2)(A). United States v. Rios Ruiz, 579 F.2d 670, 675-77
(1st Cir. 1978). Likewise, DiSantis’s prior inconsistent
statements in his police report qualified as party admissions,
and the district court committed no error in instructing
the jury that they could consider those statements
for their truth.

B. Bodily Injury
DiSantis next objects to the jury instruction defining the
“bodily injury” element of § 242, which, if proved, triggers
an enhanced ten-year maximum sentence under the
statute. The district court gave the government’s proposed
instruction on bodily injury, which provided:

If you find that defendant DiSantis is guilty of
any count, you will have to determine whether the
government proved beyond a reasonable doubt
that defendant’s acts resulted in bodily injury with
respect to that count. The government need not
prove that the defendant intended to cause bodily
injury to the victim; the government need only
prove that bodily injury resulted from the defendant’s
unlawful conduct. “Bodily injury” includes
any injury that is painful and obvious, even if the
victim does not seek medical attention. Bodily
injury includes a cut, abrasion, bruise, physical
pain, or any other injury to the body no matter
how temporary.

DiSantis argues that this instruction is too broad, reaching
even trivial forms of bodily injury not intended to fall
within the reach of § 242. Before addressing this argument,
we must resolve the government’s claim that
DiSantis has waived, or at least forfeited, his objection
to the bodily injury instruction.

A defendant waives an objection to jury instructions
if “the record illustrates that the defendant approved of
the instructions at issue.” United States v. Pree, 408 F.3d
855, 872 (7th Cir. 2005) (quoting United States v. Griffin,
84 F.3d 912, 924 (7th Cir. 1996)). The “touchstone” of the
waiver inquiry is “whether and to what extent the defendant
ha[s] actually approved of the jury instructions
assigned as error on appeal.” Griffin, 84 F.3d at 924. Waiver
“extinguishes any error” and “precludes appellate review.”
Pree, 408 F.3d at 872.

In contrast to waiver, forfeiture occurs where a defendant
fails to object to a proposed jury instruction by
“stating distinctly the matter to which the [defendant]
objects and the grounds of the objection.” United States v.
Wheeler, 540 F.3d 683, 688 (7th Cir. 2008) (quotation omitted);
see also Fed. R. Crim. P. 30(d) (providing that objections
to jury instructions “must inform the court of the
specific objection and the grounds for the objection”).
Although forfeiture does not preclude appellate review
as does waiver, we review forfeited objections only for
plain error. Griffin, 84 F.3d at 924-25. An error is plain if
it was “(1) clear and uncontroverted at the time of appeal
and (2) affected substantial rights, which means the error
affected the outcome of the district court proceedings.”
Wheeler, 540 F.3d at 689 (quotation omitted). Further, plainerror
review is “particularly light-handed in the context
of jury instructions,” since it is unusual that any error in
an instruction to which no party objected would be so
great as to affect substantial rights. Griffin, 84 F.3d at 925.

During the jury instructions conference, DiSantis’s
counsel objected to the portion of the instruction providing
that the government only had to prove that bodily injury
“resulted from” DiSantis’s conduct. Defense counsel
argued that the instruction should require that DiSantis
actually “caused” bodily injury. The court rejected the
proposed change as inconsequential, since the government’s
theory relied on proving causation:

THE COURT: . . . they [the government]
are not going to
argue—they are going to
argue that there was a
cause and effect relationship.
DEFENSE COUNSEL: Okay.
THE COURT: I think this is a correct
instruction, but I do not
think your fear is going
to—there is any risk of
your fear materializing,
seriously. Okay?
DEFENSE COUNSEL: Thank, you Judge.

We disagree with the government’s characterization
of counsel’s thanking the judge as a waiver of the objection
to the bodily injury instruction. We read that
response as a display of civility after having one’s argument
heard and rejected, not as the type of actual approval
of a jury instruction that would constitute waiver.
Cf. United States v. Anifowosche, 307 F.3d 643, 650 (7th Cir.
2002) (defense counsel’s affirmative response to the
court’s statement for the record “that the instructions
were given without objection by either side” was a
waiver); Griffin, 84 F.3d at 923-24 (defense counsel’s
agreement that it preferred the instruction offered by the
court was a waiver). Moreover, at the end of the instructions
conference, defense counsel expressly preserved
his “continuing objection to the jury instruction on
bodily injury . . . .” The court responded that “the instruction
objections have all been preserved.”

Although DiSantis did not waive his objection to the
bodily injury instruction, we agree with the government
that he forfeited it. As noted above, DiSantis’s objection
at trial focused on the lack of a causation requirement,
while his objection on appeal focuses on the breadth of
the definition of “bodily injury.” Since DiSantis’s objections
at trial and on appeal are “substantively different,”
we will limit our review of the instruction for plain error.
Wheeler, 540 F.3d at 689.

In determining whether the given instruction “correctly
states the law,” Gibson, 530 F.3d at 609, we cannot rely on
§ 242 itself, which does not define bodily injury. However,
the final sentence of the instruction tracks the language
of several criminal statutes that define bodily injury as
“(A) a cut, abrasion, bruise, burn, or disfigurement;
(B) physical pain; (C) illness; (D) impairment of a function
of a bodily member, organ, or mental faculty; or (E) any
other injury to the body, no matter how temporary.” 18
U.S.C. § 831(f)(5) (prohibited transactions involving nuclear
materials); id. § 1365(h)(4) (tampering with consumer
products); id. § 1515(a)(5) (definition applicable to witness
tampering, § 1512, and witness retaliation, § 1513); id.
§ 1864(d)(2) (hazardous or injurious devices on federal
lands). The remaining portion of the instruction is
similar to the definition of bodily injury provided by the
Sentencing Guidelines. See U.S.S.G. § 1B1.1 cmt. n.1(B)
(defining bodily injury as “significant injury; e.g., an
injury that is painful and obvious, or is of a type for
which medical attention ordinarily would be sought”).
Relying on these provisions, two other circuits have
appropriately approved jury instructions on the bodily
injury element of § 242 similar to the instruction given
here. See United States v. Bailey, 405 F.3d 102, 111 (1st
Cir. 2005); United States v. Meyers, 972 F.2d 1566, 1572-73
(11th Cir. 1992).

Based on this authority, we cannot say that the district
court’s instruction on bodily injury provided the jury
with an incorrect statement of the law, especially since
DiSantis has failed both in the district court and on appeal
to offer an alternative definition of bodily injury. See
Myers, 972 F.2d at 1572 (observing that the defendant
had challenged the breadth of the bodily injury instruction
but had not offered the district court an alternative
definition). DiSantis has failed to show any “clear and
uncontroverted” error in the instruction that would justify
reversal on plain-error review. Wheeler, 540 F.3d at 689.

Moreover, given the trial testimony on the extent of
bodily injury suffered by Hector Montes, DiSantis cannot
show that any error in the instruction “affected the outcome
of the district court proceedings.” Id. Hector testified
that DiSantis, infuriated by Hector’s inability to tell
him about the video camera’s memory stick, struck
Hector with the camera once on the face and again on
the head. Hector suffered headaches and a cut on his face
to the right of his nose. Richard Montes’s testimony
confirmed that DiSantis hit Hector in the face, drawing
blood, and the government introduced a police photo of
Hector following his arrest that showed a red mark to
the right of his nose. Hector also testified that DiSantis
grabbed his testicles during a pat-down search, causing
pain, and that Hector went to the hospital following his
release from the Cicero police station to seek treatment
for his injuries.

Based on this evidence, the injuries suffered by Hector
would satisfy a definition of bodily injury far more restrictive
than that given by the district court. So even if
DiSantis were correct that the court’s definition was
too broad, that error would be harmless.

C. Reasonable Force
DiSantis’s third argument challenges the jury instruction
defining the “reasonable force” that DiSantis could use in
detaining Hector Montes without violating his constitutional
rights. The given instruction provided:

In this case, if you find that the defendant used
force against . . . Hector Montes, you must then
determine whether the force he used against that
individual was reasonable or unreasonable. In
making that determination, you should consider
all the circumstances from the point of view of an
ordinary and reasonable officer on the scene,
including the seriousness of the offense that the
individual may or may not have committed,
whether that individual posed an immediate
threat to the safety of defendant DiSantis, and
whether that individual was actively resisting
arrest or attempting to evade arrest by flight.

DiSantis argues that this instruction fails to adequately
define what force is reasonable “from the point of view of
an ordinary and reasonable officer on the scene.” Because
no witness was qualified as an expert on reasonable
police force, DiSantis continues, the instruction invited
the jury to attach undue weight to the testimony of
Officer Joseph Melone, a government witness who was
the only other “officer on the scene.”

Again, our first task in addressing this argument is to
ascertain the applicable standard of review. During the
jury instructions conference, defense counsel expressed
concern with the phrase instructing the jury to “consider
all of the circumstances and point of view of an ordinary
and reasonable officer on the scene.” The court responded
that the language was in many ways favorable to DiSantis,
telling jurors that “objectivity is the standard” and that
they may not judge reasonable force from their own
“particularly sensitive” viewpoints. Counsel seemed to
accept this response, and the parties moved on to discuss
other instructions. When the court later returned to the
reasonable force instruction and asked whether the
defense “was comfortable with the rest of it,” counsel
balked: “I can’t say ‘comforted,’ but I do not even know
how to frame my argument. Something feels wrong
about it, but I do not think that is going to help my position.”

This expression of general discomfort falls short of the
specific objection that we require in order to preserve
a challenge to a proposed jury instruction. See Wheeler,
540 F.3d at 688. We will accordingly review the instruction
only for plain error. And the district court did not
plainly err in giving an instruction that so closely tracks
the Supreme Court’s description of the type of reasonable
force that an arresting officer may use without violating
a suspect’s Fourth Amendment rights. In Graham
v. Connor, 490 U.S. 386, 388 (1989), the Court held that
claims of excessive police force against an arrestee are
subject to a test of “objective reasonableness.” That test
“requires careful attention to the facts and circumstances
of each particular case, including the severity of the
crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade
arrest by flight.” Id. at 396. The “ ‘reasonableness’ of a
particular force must be judged from the perspective of a
reasonable officer on the scene.” Id. Relying on Graham,
we have upheld a jury instruction that put forth this
objective, “reasonable law enforcement officer on the
scene” test in another § 242 case charging a police officer
with the use of excessive force. United States v. Brown, 250
F.3d 580, 586 (7th Cir. 2001). DiSantis’s challenge to the
district court’s reasonable force instruction is therefore
without merit, especially since, as with the bodily
injury instruction, DiSantis fails to offer an alternative
definition of reasonable force.

We also disagree with DiSantis that the instruction
would have been adequate only if accompanied by expert
testimony on reasonable police force. Although in some
instances expert testimony may assist the jury in determining
whether an officer used excessive force, see Kladis
v. Brezek, 823 F.2d 1014, 1019 (7th Cir. 1987), expert testimony
is by no means required in all excessive force
cases. Since the question of excessive force is so factintensive,
the jury will often be “in as good a position as
the experts” to decide whether the officer’s conduct was
“objectively reasonable.” Thompson v. City of Chicago, 472
F.3d 444, 458 (7th Cir. 2006). The jury in this case, having
heard extensive testimony on the facts and circumstances
surrounding the traffic stops, was well-positioned to
decide whether DiSantis used reasonable force.

D. Missing Witness Instruction
DiSantis’s final argument challenges the district
court’s refusal to give a “missing witness” instruction—
that is, an instruction that the prosecution’s failure
to call a witness may give rise to an inference that the
witness’s testimony would have been unfavorable to the
government. United States v. Gant, 396 F.3d 906, 910 (7th
Cir. 2005) (citing Fed. Crim. Jury Instr. 7th Cir. 3.24 cmt.
(1999)). DiSantis argues that the court should have tendered
a missing witness instruction as to Robert Bertucci
and Steven Roden, passengers in Pine’s car during the
traffic stop and potential government witnesses.

A district court has “broad discretion” in refusing to
give missing witness instructions, which are generally
disfavored. See United States v. Brock, 417 F.3d 692, 699 (7th
Cir. 2005). “To establish entitlement to a missing witness
instruction, a defendant must prove two things: first, that
the absent witness was peculiarly within the government’s
power to produce; and second, that the testimony
would have elucidated issues in the case and would not
merely have been cumulative.” Gant, 396 F.3d at 910
(quoting United States v. Valles, 41 F.3d 355, 360 (7th
Cir. 1994)).

It is clear from the record that Bertucci and Roden were
not so peculiarly within the government’s control as to
justify a missing witness instruction. At the instructions
conference, the district court noted that the defense
could have subpoenaed both Bertucci and Roden, yet
defense counsel offered no explanation for failing to do
so. The absence of any explanation, either in the
district court or on appeal, why the defense did not
subpoena these witnesses demonstrates that DiSantis
was not entitled to a missing witness instruction. See id.
(observing that the defendant had neither attempted to
subpoena the witness nor “offered a satisfactory explanation
for failing to do so”); United States v. Romo, 914
F.2d 889, 894 (7th Cir. 1990) (noting that the defendant
failed to subpoena, interview, or request the production
of the witness); cf. United States v. Cochran, 955 F.2d 1116,
1122 (7th Cir. 1992) (affirming the district court’s refusal
to allow comment on the absence of government witnesses
during closing arguments where the defendant
“could have issued subpoenas to both ‘missing witnesses’
”).

Although the absence of peculiar government control is
alone sufficient to deny a missing witness instruction,
DiSantis also fails to explain how Bertucci’s and Roden’s
testimony would have “elucidated issues.” Gant, 396
F.3d at 910. While these men were passengers in Pine’s
car and so might have offered some material testimony
on the charged violation of her rights (of which DiSantis
was acquitted), they presumably did not even see the
assault on Hector Montes, which was the basis of
DiSantis’s conviction. Both requirements for a missing
witness instruction are lacking.

III. Conclusion
For the foregoing reasons, we AFFIRM DiSantis’s conviction.
5-4-09

Chicago Criminal Lawyer - Robert J Callahan