Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06-CR-728-Charles P. Kocoras, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
ARGUED SEPTEMBER 18, 2008
Before EASTERBROOK, Chief Judge, and SYKES and TINDER, Circuit Judges.
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.
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 violation of 18 U.S.C. § 242. The case proceeded to a six-day jury trial at which several witnesses, including DiSantis, testified about the Pine and Montes traffic stops.*fn1 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*fn2 not guilty of violating Pine's constitutional rights but guilty of violating Hector's rights. 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.
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 ...