United States v. Philip N. Antico , 934 F.3d 1278 ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10772
________________________
D.C. Docket No. 9:17-cr-80102-RLR-1
UNITED STATES OF AMERICA
Plaintiff-Appellee
Cross Appellant,
versus
MICHAEL C. BROWN,
Defendant-Appellant
Cross Appellee.
________________________
No. 18-10972
________________________
D.C. Docket No. 9:17-cr-80102-RLR-4
UNITED STATES OF AMERICA
Plaintiff-Appellee
Cross Appellant,
versus
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PHILIP N. ANTICO,
Defendant-Appellant
Cross Appellee.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(August 14, 2019)
Before WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
The main issue presented by these consolidated appeals is whether sufficient
evidence supports the convictions of Michael Brown for deprivation of rights
under color of law, 18 U.S.C. § 242, and of Philip Antico for obstruction of justice,
id. § 1512(b)(3), for offenses involving an incident of police brutality and a later
coverup. Brown was one of several police officers who assaulted the occupants of
a vehicle that led the officers on a high-speed chase. After the incident, Brown and
the other officers filed reports that omitted most of the details about how they
punched and kicked the occupants. Antico supervised many of these officers, and
after a video of the incident came to light, he had his subordinates substantially
change their reports to better reflect what happened as recorded on the video.
When agents of the Federal Bureau of Investigation interviewed Antico about the
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incident, he gave misleading answers that concealed that his subordinates’ reports
had been changed. At separate jury trials, Brown was convicted of deprivation of
rights under color of law for his role in the assault, and Antico was convicted of
obstruction of justice. At sentencing for both defendants, the district court rejected
the government’s argument that their Sentencing Guidelines ranges should be
calculated using aggravated assault as the underlying offense. The district court
sentenced Brown and Antico to downward-variance sentences of three years’
probation. Brown’s and Antico’s primary challenge is to the sufficiency of the
evidence, and the government cross-appeals their sentences. Because there is
sufficient evidence to support the convictions and no other reversible errors
occurred related to either trial, we affirm the convictions. But because it is unclear
whether the calculation of each defendant’s guideline range rested on a factual
finding infected by legal error, we vacate Brown’s and Antico’s sentences and
remand for resentencing.
I. BACKGROUND
We divide our background discussion in three parts. First, we describe the
facts of the assault and the coverup. Second, we discuss the prosecution of Brown.
Third, we discuss the prosecution of Antico.
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A. The Facts.
In the early morning of August 20, 2014, Officer Justin Harris of the
Boynton Beach Police Department tried to perform a traffic stop of a vehicle in
which “B.H.” was the driver and “J.B.” and “A.H.” were passengers. B.H. refused
to stop as directed but did not otherwise attempt to evade the officer, so Harris
continued following him. As B.H. approached an entrance to the highway, his
vehicle struck an officer who was on foot. A high-speed chase involving several
officers, including Officer Michael Brown, ensued. During the chase, the officers
heard over the radio that B.H. had intentionally struck an officer with his car. After
B.H. turned onto a residential street, Brown rammed the suspect vehicle and forced
it to stop. A group of officers, including Brown, Harris, Ronald Ryan, and several
others, approached the vehicle with their guns drawn.
Brown and several other officers then assaulted the vehicle’s occupants.
Brown was one of the first to reach the vehicle, and he moved toward the front
passenger door. Within seconds of reaching the door, he opened it and repeatedly
punched and kicked the front-seat passenger, J.B. Officers Harris and Ryan arrived
seconds later, and they also repeatedly struck J.B. While J.B. was still in the car
with his seatbelt on, Brown attempted to use his Taser against him, twice pulling
the trigger and ejecting the Taser’s probes. After dragging B.H. and A.H. from the
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vehicle, other officers repeatedly struck and kicked them. While the assault was
occurring, a Palm Beach County Sheriff’s Office helicopter flying overhead
recorded the incident.
Two of the vehicle’s occupants sustained injuries during the assault. B.H.
suffered severe lacerations to his head and face and bruising that caused his eyes to
swell shut. J.B. also suffered severe bruising and lacerations on the face.
Sergeant Antico, the direct supervisor of Brown, Harris, and Ryan, was not
at the scene of the assault. During the chase, he monitored events on the radio, and
he stopped to attend to the injured officer. But he saw B.H. at the hospital the night
of the incident and was aware of his injuries. And he expected his officers to
document the strikes they had used. Antico left for a scheduled vacation from
August 20 to August 27, so he did not review the involved officers’ reports until he
returned.
Hours after the incident but before they learned about the video from the
police helicopter, the involved officers—including Brown, Harris, and Ryan—
submitted officer reports about the incident. Boynton police officers are trained
that an officer report is the primary document for reporting the details about an
officer’s use of force. An officer report should include a narrative account that
recounts the types of force an officer used and the circumstances that justified their
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use. For example, if an officer struck and kicked a suspect, he would be expected
to include those details in his officer report.
Five of the involved officers failed to accurately record their use of force in
their officer reports. Brown wrote in his report that he used a Taser against J.B.
after J.B. ignored loud verbal commands to exit the vehicle, but he did not describe
striking or kicking J.B. Ryan wrote in his report that after Brown used his Taser
against J.B. for failing to exit the vehicle, J.B. complied and was handcuffed. Ryan
failed to note that he had repeatedly punched J.B. Harris wrote in his report that
when he arrived at the vehicle, Brown and Ryan were struggling with J.B., who
refused to exit the vehicle or show the officers his hands. Harris stated that he then
used his Taser against J.B., which allowed the officers to extract J.B. from the
vehicle, but that he had to use his Taser a second time after J.B. continued to resist
arrest. Harris did not mention that he had punched J.B. In addition, two other
officers failed to fully record their use of punches and kicks against B.H.
The involved officers also filed use-of-force reports. A use-of-force report is
an administrative record that the Boynton Beach Police Department uses to
compile annual statistics on use-of-force incidents. It is a two-page form on which
an officer checks boxes for the general types of force used. The form also instructs
that the officer “must” include in his offense report “[a]ll . . . details of the arrest,”
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the circumstances that “led [the officer] to believe force was necessary,” and the
“[t]ypes of force used and [its] effects.” Unlike officer reports, which are the
official records that the Boynton Police Department may share with the State
Attorney’s Office or with the public, use-of-force reports are internal to the
Boynton Police Department. Boynton officers are trained that checking a box on
the use-of-force report is not a substitute for recording the type of force used in the
officer report. Five of the involved officers, including Brown, Harris, and Ryan,
filed use-of-force reports that checked a box for “[b]lows with hands/fists/feet and
other body parts.”
After Antico returned to work on August 27, he obtained the helicopter
video and watched it with Brown. Antico then began reviewing the officer reports
that were submitted and validated as complete. He rejected those reports that did
not record strikes or kicks against J.B. and B.H. Antico returned Harris’s and
Ryan’s officer reports, allowing them to change their reports to include that they
struck J.B. Ryan’s amended report also included several new allegations: that J.B.
appeared to be reaching for a weapon before Brown used his Taser; that J.B.
refused to surrender his hands for cuffing after he was pulled from the vehicle; and
that Ryan had then “delivered 3 to 4 knee strikes to [J.B.]’s right thigh.” After
viewing the video, Brown changed his report to include that he struck J.B. several
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times with a closed fist after J.B. refused to comply with loud verbal commands to
place his hands on the dashboard, and Brown added that he used a Taser after J.B.
still refused to comply. Brown continued to omit that he kicked J.B. Antico also
returned reports for two other officers to allow them to add that they struck B.H.
An analysis of the electronic metadata of the reports—referred to at trial as the
“digital audit trail”—revealed that Antico rejected officer reports eleven times in
the 29 hours after watching the helicopter video, including rejecting reports by
Harris and Ryan several times each.
After the officers made these changes to their reports, Antico approved and
transmitted them to Boynton’s chief of police, Jeffrey Katz. After Chief Katz
reviewed all the evidence regarding the incident, he referred the matter to state and
federal authorities to determine whether the officers violated any laws.
In February 2015, agents from the Federal Bureau of Investigation
interviewed Antico. At that time, both Antico and the Bureau agents were unaware
that the reporting system for the police department retained a digital audit trail of
the changes that the officers made to their officer reports. During the interview,
Antico recalled numerous details of the incident, which he referred to as “the most
critical incident [he had] been involved in.” For example, his recollection of the
details of the high-speed chase was extensive, covering over fifty transcript pages,
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and included details about the original call from the officer who tried to stop the
suspect vehicle, which officers were involved in the pursuit, and the direction and
streets the suspect vehicle was traveling on. He also admitted that he had watched
the helicopter video with Brown and affirmed that he read every one of his
subordinates’ reports “[w]ord-for-word.”
Antico’s interview also covered the accuracy of his subordinates’ officer
reports. In responding to questions about what would raise a “red flag” for him
about the reports, Antico repeatedly answered that the failure to record the use of
strikes would be a serious red flag, one which would warrant being investigated by
Internal Affairs. But he stressed that the officer reports did state that the officers
had thrown punches and kicks. He failed to mention that the officers’ initial
completed and validated reports did not disclose that conduct. When asked whether
he returned any of the reports for corrections, Antico replied, “I’d have to check to
see . . . if I rejected anybody’s reports,” adding, “I might have rejected a couple.”
Although he had rejected eleven reports that did not record strikes or kicks against
J.B. and B.H., Antico told the agents that he had “never really had an issue with
. . . these guys not being accurate in their . . . report writing” and “paint[ing] a
picture of what happened.” And he recalled that the only statement he should have
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had a subordinate officer change in his report was a “grammatical error” stating
that a suspect’s face hit the officer’s hand instead of vice versa.
B. The Prosecution of Brown.
A grand jury charged Officers Brown, Harris, and Ryan with deprivation of
rights under color of law, 18 U.S.C. § 242, and several counts of falsification of
records, id. § 1519. In a superseding indictment, the grand jury charged Brown
with an additional count for use of a firearm during a crime of violence, id.
§ 924(c)(1)(A)(i). Later, the district court held a joint trial for Brown, Harris, and
Ryan.
The video of the incident was the government’s most important evidence
against the officers. The video depicts Brown first disabling the suspect vehicle by
ramming it, then exiting his own vehicle and momentarily pausing with his gun
drawn and pointed at B.H., and then moving rapidly toward the front passenger
door, immediately opening it, and repeatedly kicking and punching J.B.
Two of the government’s witnesses testified about the video. Chief Katz
testified that, in his opinion of it, he saw Brown come to the front passenger door,
use “some kicks,” and then “reach[] into the vehicle and strike[] [J.B.] in the seat.”
Sergeant Sedrick Aiken, Boynton Beach Police Department’s “use-of-force”
expert, testified that the video depicts Brown kicking J.B. and punching him while
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Brown had his pistol in his hand. Aiken added that it did not look like Brown gave
J.B. any verbal commands, and he explained that even if Brown did give
commands, he did not give J.B. time to comply before he began applying “hard
force” of punches and kicks.
Officer Patrick Monteith, one of the other officers on the scene during the
assault, testified that when he reached the suspect vehicle, one person had been
dragged out of it but that the officers were still swarming around the vehicle.
Monteith stood in front of the vehicle with his rifle aimed at J.B., who was still in
the front passenger seat. Monteith’s rifle was resting on the windshield itself, and
he was perhaps “two [or] three feet” away from J.B. Monteith testified that he
could see both of J.B.’s hands throughout the time that he was on the scene, and
they were “up, they were blocking, [and] there were no closed fists.” J.B. was also
“jerking in and out of the vehicle . . . violently one way and then the other way,
back and forth.” But these movements were not of his “own volition,” as he “was
being moved” by the officers. Monteith also denied that J.B. ever appeared to be
reaching for a weapon. Monteith explained that when he heard Brown beginning to
activate his Taser, he observed that J.B. was still buckled into his seat, so J.B.
could not have complied with any command to leave the vehicle even if he had
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wanted to do so. Monteith explained that he called out for someone to unbuckle
J.B., after which J.B. was removed from the vehicle.
The government also elicited testimony about the standards that the Boynton
police employ for the use of force. Sergeant Aiken testified that Boynton police
officers are trained that when an officer encounters “passive resistance”—which
includes “not complying with verbal commands, . . . tak[ing] flight, run[ning] from
[officers], protesting, sit[ting], grab[bing], hold[ing on] to a chair, railing or
staircase,”—he only may use “soft control,” such as “pressure points,” “escort
procedures,” and “escort[s] . . . with come alongs.” A passenger who refuses to get
out of a car when verbally told to do so is engaging in passive resistance. But if an
officer encounters “active resistance”—such as when a subject is “flailing, kicking
arms and legs . . . [or] tak[ing] any fighting stance towards the officer”—the officer
may use “hard force” to incapacitate the subject. Hard force includes the use of a
“[T]aser, baton, bean bag from a bean bag shotgun, punches, if necessary, a punch
with the fist to the soft tissue areas of the body.” In using hard force, the officer
targets “the soft tissue areas, the quadriceps area, calf muscles, shoulder, tricep,
bicep area, [and] muscle mass areas.” Aiken also testified that Brown had last been
trained on the lawful use of force in March 2014, five months before the incident.
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Aiken then opined on whether Brown’s use of force was reasonable based
on the department’s criteria for the use of force. He first explained that using a
Taser is not justified if a subject simply refuses to get out of a vehicle after being
given three verbal orders to exit. Aiken also read aloud the narrative portion of
Brown’s officer report from after Brown saw the helicopter video. Aiken affirmed
that Brown’s description of J.B. as refusing to obey verbal commands was passive
resistance and would not justify the force that Brown admitted to using—strikes
with a closed fist to the body and the use of a Taser. Aiken also repeatedly testified
that, based on the department’s criteria for the use of force, it was unreasonable for
Brown to punch J.B. with the gun in his hand, to kick him, or to use a Taser against
him.
Aiken also expressed concerns about the reliability of the officer reports
filed by the three defendants. Aiken affirmed that the officers had initially omitted
many details about the level of force used and the alleged circumstances that
justified the use of force in their reports. Aiken explained that there was no
justification for Brown to omit from his report that he had struck a passenger with
a firearm in his hand and that he kicked him. And Aiken explained that the
officers’ amended reports—which included new details, such as allegations that
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J.B. appeared to be reaching for a weapon and that he would not show the officers
his hands—suggested deception.
The defense rested without calling witnesses or introducing any evidence.
The jury convicted Brown of deprivation of rights under color of law (count 1) and
of the use of a firearm in a crime of violence (count 2), but acquitted him of the
two counts for falsifying a police record. The jury acquitted Harris and Ryan on all
counts.
Brown moved for a judgment of acquittal notwithstanding the verdict on the
grounds of sufficiency of the evidence as to count 1 and the legal sufficiency of
count 2. The district court granted the motion as to count 2 but denied it as to count
1. As to count one, the district court determined that the evidence viewed in the
light most favorable to the government was sufficient for a reasonable jury to find
that Brown’s use of hard force, including punches and kicks, was unreasonable
when faced with passive resistance. The district court also ruled that a reasonable
jury could find that Brown’s failure to disclose the extent of his use of force in his
officer report and his violation of departmental policy about the use of force
established his consciousness of guilt and willfulness.
Brown also moved for a new trial on the ground that the jury’s verdict was
against “the weight of the evidence.” He later supplemented his motion with
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“newly discovered evidence”—an enhanced helicopter video purportedly showing
him reholstering his weapon before striking J.B.—that was not shown to the jury.
The district court instructed Brown to file an amended supplement addressing how
the elements for a motion for a new trial based on newly discovered evidence were
met. See United States v. Thompson, 422 F.3d 1285, 1294 (11th Cir. 2005) (“When
a defendant discovers new evidence after trial that was unknown to the government
at the time of trial, a new trial is warranted only if: (1) the evidence was in fact
discovered after trial; (2) the defendant exercised due care to discover the
evidence; (3) the evidence was not merely cumulative or impeaching; (4) the
evidence was material; and (5) the evidence was of such a nature that a new trial
would probably produce a different result.” (citation and internal quotation marks
omitted)). Brown filed a memorandum acknowledging that the video did not
constitute “newly discovered evidence” under Federal Rule of Criminal Procedure
33(b)(1), but he argued that the district court should consider it anyway in deciding
whether to grant his motion in “the interests of justice.” The government replied
that Brown could not rely on the enhanced video in his motion for a new trial
because he failed to introduce it at trial and that, in any event, the video did not
support his contention that he reholstered his weapon.
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The district court denied Brown’s motion for a new trial. The district court
first concluded that it was limited to evaluating record evidence, which did not
include the enhanced video. The district court then observed that Brown had been
charged with using several means to assault J.B. other than striking him with his
gun in his hand and that the weight of the evidence did not “preponderate[] heavily
against a finding” that Brown used unreasonable force through one of the other
means. And the district court again ruled that sufficient evidence supported the
verdict.
Using the 2016 edition of the United States Sentencing Guidelines, the
probation officer initially calculated Brown’s total offense level as 27 based on
“aggravated assault” as the underlying offense. See United States Sentencing
Guidelines Manual §§ 2A2.2, 2H1.1(a)(1) (Nov. 2016). The Guidelines define
aggravated assault as “a felonious assault that involved . . . a dangerous weapon
with the intent to cause bodily injury (i.e., not merely to frighten) with that
weapon.” Id. § 2A2.2 cmt. n.1. The probation officer determined that Brown’s
actions amounted to aggravated assault based in part on his use of a Taser against
J.B. Based on an offense level of 27 and a criminal-history category of I, the
probation officer calculated Brown’s guideline range to be 70 to 87 months’
imprisonment.
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Brown objected to using aggravated assault as the underlying offense. He
argued that his use of the Taser did not qualify as aggravated assault because he
lacked the intent to cause bodily injury to J.B. The district court sustained the
objection on the ground that “[t]here is insufficient evidence to find by a
preponderance of the evidence that Brown’s intent in using the Taser was to cause
bodily injury, rather than to gain control over J.B.” As a result, the district court
recalculated the guideline range and determined that the total offense level was 16,
producing a sentencing range of 21 to 27 months of imprisonment. The district
court imposed a downward-variance sentence of three years of probation.
C. The Prosecution of Antico.
A grand jury charged Antico with obstruction of justice related to his
interview with the Bureau, 18 U.S.C. § 1512(b)(3), and two counts of falsification
of records related to his aiding and abetting of the filing of false police reports by
Officers Brown and Harris, id. § 1519.
At trial, the government’s evidence about the incident itself and the
departmental policies on the use of force was essentially the same as at Brown’s
trial. The government primarily relied on the video of the incident and testimony
by Sergeant Aiken to establish that the officers’ actions in assaulting the vehicle’s
occupants violated Boynton’s standards for the use of force.
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Sergeant Aiken and Chief Katz also testified about Boynton’s policies for
officer reports and use-of-force reports. Their testimony established that an officer
must state whatever force he used in both the use-of-force report and the narrative
section of the officer report. Sergeant Aiken also affirmed that during the thirteen
years he served as training sergeant, he had never heard of an officer not including
details about his use of force in his officer report. Katz and Aiken explained that if
an officer did omit such details, it would be a cause for formal discipline. Both
Katz and Aiken also testified that once a report is “completed” and “validated” by
an officer, it is final and is not a draft report. Aiken testified that it would be
unusual for a supervisor to review an officer report and send it back multiple times
for revisions for a subordinate failing to include important details about his use of
force. He stated that, in his experience, he had never seen a report sent back for
three or more substantive revisions. And he testified that, if a shift officer like
Antico sent back multiple officer reports for several rounds of revisions, he would
remember that event.
The government also elicited testimony about the digital audit trail of the
officer reports. Douglas Solomon, who was responsible for the Boynton Beach
Police Department’s information technology systems, testified that the digital audit
trial revealed that Antico had rejected eleven reports in the 29 hours after he
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viewed the police helicopter video, including rejecting reports by Officers Ryan
and Harris three times each.
The government also called Stuart Robinson, formerly an agent of the
Bureau, to testify about the investigation of the incident and about Antico’s
interview with the Bureau. Robinson explained that when he and other Bureau
agents first saw the video of the incident, they “were stunned by what [they] saw.”
The agents requested all reports and all other evidence that had been gathered by
the Boynton police about the incident. Eventually, the agents began interviewing
people involved in the incident, including Antico.
The government played a video of Antico’s interview, and Robinson
highlighted each of Antico’s misleading statements or omissions. Robinson
testified that Antico’s misleading statements hindered the investigation because
they gave the misimpression that the involved officers’ word could be trusted and
that their reports were credible. Robinson also explained that, outside the digital
audit trail, there was no visible way to detect that the reports had been changed.
The defense rested without calling witnesses or introducing any evidence. In
his closing argument, Antico stressed that his statements to the Bureau agents
reflected his bad memory and not an intent to mislead.
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After several hours of deliberating, the jury sent the court a note stating,
“Your Honor, we as a jury have reached a verdict on two counts. On the third we
cannot agree. We sincerely request your insight on this matter.” The district court
then conferred with counsel, and Antico’s counsel proposed that the jury be sent
home for the night to continue deliberating in the morning. He added, “[i]f they
still indicate they are deadlocked after an hour or so, at that point read an Allen
charge to them.” See Allen v. United States, 164 U.S. 492 (1896) (holding that a
trial court may encourage a deadlocked jury to continue deliberating provided it
does so noncoercively). After the government agreed to this suggestion, the district
court asked for confirmation that, if they received another note about the jury
deadlocking, the parties desired the district court to read “the modified Allen
charge,” to which defense counsel replied, “Correct.” The district court then told
the jury to break for the evening and return the following morning to continue
deliberating. Before adjourning for the day, the district court recommended that
both counsel should review “T-5, the modified Allen charge,” referring to the
instruction from this Circuit’s 2016 Pattern Jury Instructions. See Eleventh Circuit
Pattern Jury Instructions (Criminal Cases), Trial Instruction 5, at 685–86 (2016).
The following morning, the jury sent the district court a second note that
read, “Your Honor, we, the jury, are not able to agree on one count. No amount of
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time, talk, contemplation or discussion of the facts provided shall result in a
unanimous decision.” In discussing the note with counsel, the district court
explained that it could have the jury return a partial verdict for those counts on
which the jury agreed, or it could give the modified Allen charge. The following
colloquy then ensued:
[Assistant United States Attorney]: Your Honor, we believe at this
point the Court should give the modified Allen charge in T-5. The
Government is not opposed to a partial verdict, but I believe Defense
counsel does not agree, so that is not an option.
The Court: So, the Government would bring the jury in, acknowledge
the note and read T-5, the modified Allen charge, and send them back.
[Assistant United States Attorney]: Yes, your Honor.
The Court: Defense?
[Defense Counsel]: That is my request.
The district court replied, “Okay, then I will bring the jury in and do that,” after
which it gave the modified Allen charge.
After about an hour of deliberation, the jury sent the court a third note
stating that the district court’s “comments were/are material,” and that as a result, it
had reached a verdict. The jury found Antico guilty of the obstruction-of justice-
count, but not guilty of the two falsification-of-records counts.
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Antico moved for a judgment of acquittal notwithstanding the verdict on the
ground of sufficiency of the evidence. He again argued that the evidence was
insufficient for a reasonable jury to find that he knowingly engaged in misleading
conduct because his statements or omissions to the agents were best explained by
his faulty memory. Antico also moved for a new trial on the ground that the Allen
charge was “unconstitutionally coercive” because it asked the jury to consider the
costs of the trial and possible retrial.
The district court denied both motions. As to the sufficiency of the evidence,
the district court concluded that there was sufficient evidence for the jury to
conclude that Antico knowingly misled the Bureau by “not disclos[ing] that he had
rejected several reports in quick succession because the reports did not accurately
reflect the use of force that Sergeant Antico saw in the [police-helicopter] video.”
The district court also observed that Antico’s memory of other details of the
incident was “sufficient evidence . . . demonstrat[ing] a knowing intent to mislead
the [Bureau].” As to the motion for a new trial, the district court ruled that its Allen
charge, the language of which came from the Eleventh Circuit Pattern Jury
Instructions, was not unduly coercive.
Months later, a juror sent Antico’s counsel an email suggesting that jurors
had voted for guilt to ensure that someone would be held accountable for the use of
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force; that their verdict reflected that certain jurors harbored bias against police
officers; and that certain jurors bullied others to reach a verdict, including by
making fun of the complaining juror for having a “crush” on Antico. After
receiving this email, Antico requested that the district court interview the juror in
chambers, with counsel present, to determine whether further investigation was
warranted.
The district court denied the motion to interview the juror. It explained that
Federal Rule of Evidence 606(b) and our Circuit’s precedent establish “very
stringent limitations” on its authority to question jurors about their deliberations
and to use juror testimony to impeach a verdict. As for the allegation that some
jurors voted guilty to hold someone accountable, the district court ruled that “[t]he
juror’s vague allegations . . . [were] not clear, strong, substantial and
incontrovertible evidence that a specific, nonspeculative impropriety occurred
during the deliberations.” And as to the allegation of bias against police officers,
the district court explained that this allegation did not satisfy the narrow exception
to the no-impeachment rule that applies to racial bias. See Pena-Rodriguez v.
Colorado, 137 S. Ct. 855 (2017). And for the allegation of bullying, the district
court explained that this allegation “describe[d] nothing more than typical features
of jury deliberations” and was “insufficient to violate the no impeachment rule.”
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One month later, Antico learned that a second juror had spoken to the spouse
of an Assistant United States Attorney who was not involved in the case to discuss
the juror’s experience. Antico moved the district court to compel the government
to disclose what the second juror said to the spouse, arguing that it was akin to
Brady material, see Brady v. Maryland, 373 U.S. 83 (1963), and must be provided
to defense counsel to allow him to evaluate the disclosure and determine whether
to file a motion.
The district court denied the motion. It determined that Antico’s motion to
compel “fail[ed] to present any evidence that impropriety ha[d] occurred,” but
instead “simply state[d] that a juror spoke with the wife of an [Assistant United
States Attorney] about his or her experience as a juror.”
As in Brown’s guideline calculation, the probation officer initially calculated
Antico’s total offense level based on “aggravated assault” as the underlying
offense. See U.S.S.G. §§ 2A2.2, 2J1.2, 2X3.1. Based on an offense level of 21 and
a criminal-history category of I, the probation officer calculated Antico’s guideline
range to be 37 to 46 months of imprisonment.
Antico objected that his guideline calculation should use falsification of
reports as the underlying offense and not aggravated assault. Relying on its ruling
at Brown’s sentencing that Brown’s use of the Taser did not constitute aggravated
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assault, the district court sustained the objection. The district court then
recalculated the guideline range and determined that the total offense level was 14,
producing a sentencing range of 15 to 21 months’ imprisonment. The district court
imposed a downward-variance sentence of three years of probation.
II. STANDARDS OF REVIEW
Three standards of review govern these appeals. We review the sufficiency
of the evidence de novo, “view[ing] the evidence in [the] light most favorable to
the jury verdict and draw[ing] all inferences in its favor.” United States v. Reeves,
742 F.3d 487, 497 (11th Cir. 2014). We also review de novo the “legal
interpretation of the sentencing guidelines” and the “application of the sentencing
guidelines to the facts.” United States v. Cubero, 754 F.3d 888, 892 (11th Cir.
2014). But “[w]e review for clear error the [underlying] factual findings.” Id. We
review for abuse of discretion a decision to give an Allen charge, see United States
v. Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008); a decision not to hold an
evidentiary hearing to investigate alleged juror misconduct after the end of trial,
see United States v. Venske, 296 F.3d 1284, 1290 (11th Cir. 2002); and a denial of
a defendant’s motion for a new trial based on the weight of the evidence, see
United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985).
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III. DISCUSSION
We divide our discussion in three parts. First, we address the issues related
to Brown’s trial. Second, we address the issues related to Antico’s trial. Third, we
discuss the sentencing issues for both defendants. We conclude that sufficient
evidence supports both officers’ convictions and that no other reversible errors
occurred related to either trial. But we also conclude that Brown and Antico must
be resentenced because it is unclear whether, in calculating the defendants’
guideline ranges, the district court made factual findings infected by legal error.
A. The Issues Related to Brown’s Trial.
Brown raises two issues for our review. First, he challenges whether
sufficient evidence supports his conviction. Second, he argues that the district court
abused its discretion in denying his motion for a new trial.
1. Sufficient Evidence Supports Brown’s Conviction.
To convict Brown of deprivation of rights under color of law, 18 U.S.C.
§ 242, the government had to prove that Brown acted “(1) willfully and (2) under
color of law (3) to deprive a person of rights protected by the Constitution or laws
of the United States.” United States v. House, 684 F.3d 1173, 1198 (11th Cir.
2012) (citation and internal quotation marks omitted). When a police officer is
charged with using excessive force in making an arrest, the constitutional right at
issue is the right under the Fourth Amendment to be free from unreasonable
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seizures. See Graham v. Connor, 490 U.S. 386, 394 (1989). Whether an officer
violated this right depends on “whether the officer[’s] actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting [him], without
regard to [his] underlying intent or motivation.” Id. at 397.
Brown argues that insufficient evidence supports his conviction for two
reasons. First, he argues that his use of force was reasonable because J.B. resisted
with “active force.” Second, he contends that there was insufficient evidence of
Brown’s willfulness. Neither argument has any merit.
a. Brown’s Use of Force Against J.B. Was Objectively Unreasonable.
“Determining whether the force used to effect a particular seizure is
reasonable under the Fourth Amendment requires a careful balancing of the nature
and quality of the intrusion on the individual’s Fourth Amendment interests against
the countervailing governmental interests at stake.” Id. at 396 (citation and internal
quotation marks omitted). In making this determination, a jury must “weigh the
quantum of force employed against the severity of the crime at issue; whether the
suspect poses an immediate threat to the safety of the officers or others; and
whether the suspect actively resisted arrest or attempted to evade arrest by flight.”
Dukes v. Deaton, 852 F.3d 1035, 1042 (11th Cir. 2017) (citation and internal
quotation marks omitted). It must consider an officer’s actions “from the
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perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight,” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243,
1248 (11th Cir. 2004), and recognize that “[t]he calculus of reasonableness must
embody allowance for the fact that police officers are often forced to make split-
second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation,”
Graham, 490 U.S. at 396–97.
In considering the “severity of the crime at issue,” the jury looks to the crime
the victim was suspected to have committed when the force was used. See, e.g.,
Stephens v. DeGiovanni, 852 F.3d 1298, 1321–22 (11th Cir. 2017) (judging
whether the officer’s use of force was excessive in the light of the nonviolent
misdemeanors with which the plaintiff-victim was charged); Oliver v. Fiorino, 586
F.3d 898, 908 (11th Cir. 2009) (explaining that the repeated use of a Taser was
“utterly disproportionate” where the plaintiff-victim “was not accused of or
suspected of any crime, let alone a violent one”); Galvez v. Bruce, 552 F.3d 1238,
1243 (11th Cir. 2008) (determining that the charges for nonviolent misdemeanors
against the victim of an assault by an officer weighed in favor of ruling that the
force used against him was excessive). “More force is appropriate for a more
serious offense and less force is appropriate for a less serious one.” Salvato v.
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Miley, 790 F.3d 1286, 1293 (11th Cir. 2015) (alteration adopted) (citation and
internal quotation marks omitted). Nonviolent misdemeanors are “crime[s] of
‘minor severity’ for which less force is generally appropriate.” Reese v. Herbert,
527 F.3d 1253, 1274 (11th Cir. 2008); see also Stephens, 852 F.3d at 1321–22;
Galvez, 552 F.3d at 1243.
Ample evidence supports the jury’s finding that Brown used excessive force
against J.B. Brown does not dispute that he repeatedly struck, kicked, and twice
used a Taser against J.B. In all versions of his officer report, he acknowledged that
the only circumstance justifying his use of force was J.B.’s failure to comply with
loud verbal commands—either to exit the vehicle or to place his hands on the
dashboard. But a reasonable jury could have found that Brown either did not give
any verbal commands to J.B. or that he did not give J.B. the opportunity to comply
with his commands before using severe force. J.B. also was charged with resisting
arrest without violence. This is not a serious crime for which severe force is
warranted. See Stephens, 852 F.3d at 1321–22. And no evidence at trial suggested
that a reasonable officer in Brown’s position would have suspected that J.B.—a
mere passenger—was responsible for the more serious crimes related to the high-
speed chase or for using the suspect vehicle to hit a police officer. A reasonable
juror could also have found that an officer in Brown’s position, knowing that J.B.
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had only been a passenger in the suspect vehicle and observing J.B. sitting
passively in his seat with his seatbelt fastened, would not have perceived him as an
immediate threat. And the evidence was also sufficient for the jury to find that a
reasonable officer in Brown’s position would not have assumed that J.B. was
“actively resisting arrest or attempting to evade arrest by flight.” Id. at 1321
(quoting Graham, 490 U.S. at 396). Brown began using force against J.B. within
seconds of arriving at the suspect vehicle. The government also presented evidence
that Brown gave no orders that J.B. could possibly have followed before Brown
began using force. [In this circumstance, the jury had more than a sufficient basis
to find that it was unreasonable for Brown to use punches, kicks, and a Taser
against a nonresisting passenger like J.B.
Before moving on, we address one point about the government’s position on
Brown’s use of force. In its brief and at oral argument, the government implied that
because the testimony at trial suggested that Boynton’s policies on the use of force
reflected the constitutional reasonableness standard, the jury could have inferred
that Brown’s violations of those policies necessarily amounted to a constitutional
violation. But the district court correctly instructed the jury that an officer’s
violation of a police department’s policies on the use of force would not by itself
establish that his actions amounted to excessive force. We reject the proposition
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that we can ever substitute a police department’s standards on the use of force for
the constitutional standard—even when the policies attempt to mirror the
constitutional reasonableness standard. Although the jury may consider a
department’s policies as relevant evidence, district courts should follow the
example here of using limiting instructions to prevent the jury from conflating a
violation of departmental policy with a violation of the Constitution.
b. Brown Willfully Used Excessive Force Against J.B.
To establish that a defendant acted “willfully” in committing a deprivation
of rights under color of law, the government must prove that the defendant “act[ed]
with ‘a specific intent to deprive a person of a federal right made definite by
decision or other rule of law,’ or ‘in open defiance or in reckless disregard of a
constitutional requirement which has been made specific and definite.’” House,
684 F.3d at 1199–1200 (quoting Screws v. United States, 325 U.S. 91, 103, 105
(1945) (plurality opinion)). A defendant need not have been “thinking in
constitutional terms,” so long as his “aim was not to enforce local law but to
deprive a citizen of a right and that right was protected by the Constitution.”
Screws, 325 U.S. at 106 (plurality opinion). And “the defendant’s subsequent
conduct may be considered if it supports a reasonable inference as to his prior
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intent.” House, 684 F.3d at 1200 (alterations adopted) (citation and internal
quotation marks omitted).
The evidence here was more than sufficient for a reasonable jury to find that
Brown acted in open defiance or reckless disregard of constitutional limitations on
the use of force. Brown’s training in the use of force supports the jury’s finding of
willfulness. See United States v. Rodella, 804 F.3d 1317, 1337–38 (10th Cir. 2015)
(holding that evidence of training a defendant-officer received on pursuit of
suspect vehicles was relevant to whether he acted willfully in unlawfully arresting
the driver and subjecting him to excessive force). Sergeant Aiken testified that
Brown’s actions—punching, kicking, and employing a Taser against a passively
resisting passenger—clearly violated the department’s policies on the use of force,
and he testified that Brown had been most recently trained on the use of force five
months before the incident. The bare fact that an officer’s actions violated his
training on the use of force will not always suggest that his actions were willful—
after all, officers must frequently make “split-second judgments” in “tense,
uncertain, and rapidly evolving” circumstances. Graham, 490 U.S. at 397. But
where an officer’s actions so obviously violate his training on the use of force, a
jury may infer that the violation was willful. Here, the jury could have found that,
based on his training, it would have been obvious to Brown that he lacked the
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authority to repeatedly punch and kick a passenger who presented at most passive
resistance.
The jury also could have inferred Brown’s willfulness from his filing of
police reports that sought to cover up his actions. His initial officer report, filed
only hours after the incident, omitted that he kicked and punched J.B. before using
the Taser. Only after viewing the helicopter video did Brown admit to having
struck J.B. several times with a closed fist. And Brown never admitted to having
kicked J.B. even in his later reports. Based on Brown’s misleading officer reports,
the jury reasonably could have inferred that Brown was conscious that his actions
were unlawful, but recklessly disregarded that fact in choosing to assault J.B. Cf.
House, 684 F.3d at 1202 (concluding that an officer’s repeated “attempt[s] to
conceal his actions by making false statements in his incident reports” supported
jury’s finding that he acted willfully when he seized motorist in violation of the
Fourth Amendment).
Brown responds that the shortcomings of his officer report do not reflect a
consciousness of guilt because he checked a box in his use-of-force report stating
that he used “blows with hands/fists/feet.” But Boynton officers are trained—and
indeed, the use-of-force form itself states—that use-of-force reports cannot
substitute for recording the extent of the use of force in the officer report. And the
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evidence at trial established that an officer in Brown’s position would understand
that failing to record the use of punches or kicks in an officer report would be a
violation of departmental policy that could warrant formal discipline. So the jury
could have reasonably found that Brown’s omissions from his officer report were
deliberate and reflected a knowledge that his actions were unlawful.
2. The District Court Did Not Abuse Its Discretion in Denying Brown’s
Motion for a New Trial.
Federal Rule of Criminal Procedure 33 provides that “[u]pon the defendant’s
motion, the court may vacate any judgment and grant a new trial if the interest of
justice so requires.” Fed. R. Crim. P. 33(a). “When considering a motion for a new
trial, the district court may weigh the evidence and consider the credibility of the
witnesses.” United States v. Albury, 782 F.3d 1285, 1295 (11th Cir. 2015) (citation
and internal quotation marks omitted). A motion for a new trial based on the
weight of the evidence is “not favored” and is reserved for “really exceptional
cases.” Martinez, 763 F.2d at 1313 (citation and internal quotation marks omitted).
For a new trial to be warranted, “[t]he evidence must preponderate heavily against
the verdict, such that it would be a miscarriage of justice to let the verdict stand.”
Id. Although the standards for granting a motion for acquittal, see Fed. R. Crim. P.
29, and a motion for a new trial under Rule 33 are similar, they are not identical. A
district court may grant a new trial based on the weight of the evidence even if the
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evidence is sufficient to convict in the “rare” “case in which the evidence of guilt
although legally sufficient is thin and marked by uncertainties and discrepancies.”
Butcher v. United States, 368 F.3d 1290, 1297 n.4 (11th Cir. 2004) (citation and
internal quotation marks omitted); accord Martinez, 763 F.2d at 1313 (“[C]ourts
have granted new trial motions based on weight of the evidence only where the
credibility of the government’s witnesses had been impeached and the
government’s case had been marked by uncertainties and discrepancies.”).
Brown does not argue that the government’s case against him was “marked
by uncertainties and discrepancies” or that the credibility of the government’s
witnesses was impeached at trial. Instead, he stresses that the inconsistency
between his conviction and the acquittals of his codefendants warrants a new trial,
but this argument is a nonstarter. Brown concedes that inconsistency in a jury’s
verdict concerning several defendants—convicting some but acquitting others—is
not a ground for acquittal under Rule 29. See United States v. Wright, 63 F.3d
1067, 1074 (11th Cir. 1995); see also 3 Charles A. Wright et al., Federal Practice
and Procedure § 514 (4th ed. Apr. 2019 update) (“[T]he jury need not act
rationally in regard to verdicts of acquittal and conviction on several counts or
concerning several defendants.” (emphasis added)). And we have explained that
where a defendant’s “arguments regarding . . . inconsistent verdicts [fail] in the
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context of his motion for judgment of acquittal[,] [i]t follows a fortiori that those
arguments fail under the abuse of discretion standard we employ” in evaluating a
motion for a new trial. Albury, 782 F.3d at 1295. Because Brown’s argument about
inconsistent jury verdicts would fail to justify his acquittal, the district court did
not abuse its discretion in rejecting his motion for a new trial on that basis.
Brown also argues that the newly discovered enhanced video of the incident
should have been considered when deciding whether “the interests of justice”
require a new trial for a verdict against the weight of the evidence, but we disagree.
A district court considering whether a verdict is against the weight of the evidence
“sits as a ‘thirteenth juror,’” Tibbs v. Florida, 457 U.S. 31, 42 (1982); see also
United States v. Sinclair, 438 F.2d 50, 51 n.1 (5th Cir. 1971), and evaluates the
evidence presented at trial. Evidence that the defendant either knew about during
trial but failed to introduce or discovered only after trial falls outside the scope of
such motions. When a defendant seeks a new trial based on evidence discovered
after trial, a motion under Rule 33(b)(1) provides the only vehicle for considering
it, and a defendant must satisfy the requirements of that Rule. See Thompson, 422
F.3d at 1294. And when, as here, a defendant expressly concedes that the new
evidence does not constitute “newly discovered evidence” within the meaning of
Rule 33(b)(1), he may not disguise what is in substance a legally insufficient
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motion as one challenging whether the verdict is against the weight of the
evidence. So the district court correctly disregarded the enhanced video in
evaluating Brown’s motion for a new trial.
In any case, the video would not have made a difference. Brown argues that
the video would reveal that “[t]he sole factor which set [his] actions apart from the
[actions] of his acquitted co-defendants”—that Brown allegedly “held a gun in his
hand when administering hard force”—never occurred, as the video purportedly
establishes that Brown reholstered his weapon. Assuming that Brown is right about
the video, there were other obvious factors that set Brown’s use of force apart from
that of his codefendants. For example, Brown was the only one to kick or use his
Taser against J.B. As the district court concluded, Brown’s immediate and total use
of hard force in response to J.B.’s passive resistance justified his conviction
regardless of whether he had a gun in his hand when he punched J.B. So even if the
district court erred in failing to consider the enhanced video, the error was
harmless.
B. The Issues Related to Antico’s Trial.
We divide our discussion of the issues related to Antico’s trial in three parts.
First, we explain that sufficient evidence supports Antico’s conviction. Second, we
explain that Antico invited any error in giving an Allen charge. Third, we explain
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that the district court did not abuse its discretion in declining to investigate juror
misconduct or to compel the disclosure of the contents of a juror’s post-trial
conversation, and that the cumulative effect of any errors did not deny Antico a fair
trial.
1. Sufficient Evidence Supports Antico’s Conviction.
To convict Antico of obstruction of justice, 18 U.S.C. § 1512(b)(3), the
government had to prove that Antico (1) “knowingly and willfully . . . engage[d] in
misleading conduct toward another person, (2) with the intent to hinder, delay or
prevent the communication of information to a federal official, (3) about the
commission or the possible commission of a federal crime.” United States v.
Ronda, 455 F.3d 1273, 1284 (11th Cir. 2006) (citation and internal quotation
marks omitted). “[M]isleading conduct” is defined to include “knowingly making a
false statement” and “intentionally omitting information from a statement and
thereby causing a portion of such statement to be misleading, or intentionally
concealing a material fact, and thereby creating a false impression by such
statement.” 18 U.S.C. § 1515(a)(3)(A)–(B).
The government identifies three types of false statements or omissions that
support Antico’s conviction: (1) his repeated statements falsely vouching for the
credibility of his officers and stating that he had never had an issue with “these
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guys not being accurate” in their officer reports; (2) his omission of the fact that
several of his subordinates’ officer reports that were submitted and validated as
complete did not fully or accurately reflect the force they used against J.B. and
B.H.; (3) and Antico’s omission of the fact that he returned eleven officer reports
over a span of 29 hours so that his subordinates could change them to be consistent
with the video.
Antico does not deny that his statements or omissions were, in fact,
misleading to the Bureau agents, but he argues that they reflect only that he “could
not remember or recall exact events.” He challenges both whether he knowingly
engaged in misleading conduct and whether any misstatement or omissions were
made with the intent to hinder the investigation of the police officers’ assault.
There was ample evidence for a reasonable juror to find that Antico’s
statements or omissions reflected an intentional effort to mislead. A reasonable
jury could infer Antico’s intent from the stark difference in his memory about the
incident on the one hand and his inability to recall basic facts about his
subordinates’ officer reports on the other. The transcript of Antico’s account of the
incident covers over fifty pages and includes minute details, such as the direction
of travel, the streets, and the officers involved in the high-speed chase, as well the
precise words said by many of the officers. That Antico’s memory was excellent in
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recalling the details of the incident but failed him utterly when his interview turned
to the accuracy of his subordinates’ officer reports about that incident supports an
inference that his claims of forgetfulness were false.
A reasonable jury could also have found that an officer in Antico’s position
would be unlikely to forget the shortcomings in his subordinates’ initial officer
reports. Multiple witnesses testified that Boynton officers are trained that they
must include in their reports all relevant details about their use of force, including
whether they punched or kicked a suspect. The testimony also established that the
failure to follow this policy could warrant formal discipline, and Antico admitted
that if he caught his subordinates omitting details about striking or kicking a
suspect, it would be something for Internal Affairs to investigate. Indeed, Sergeant
Aiken testified that an officer omitting major details from his report would be a
highly unusual event, as he was not aware of any other instance of it happening in
the thirteen years he had served as training sergeant. Aiken further testified that it
would be unusual for a supervisor to send back an officer report multiple times for
revisions for a failure to include important details about the use of force. And
Aiken testified that if a shift officer like Antico sent back multiple officer reports
for several rounds of revisions, he would remember having done so. Considering
that Antico rejected eleven officer reports from five officers in the 29 hours after
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he saw the video based on the failure to adequately document the use of punches
and kicks, the jury reasonably could have inferred that this would have been such a
memorable event for Antico that it was implausible that he would have forgotten it.
Consider too that the nature of the incident itself would put an officer in
Antico’s position on alert that his subordinates’ officer reports would ultimately
become important and would render him unlikely to forget key details about them.
Antico referred to the assault as “the most critical incident I’ve been involved in”
and the one that involved the “most force.” The brutality of the officers’ actions
captured on video is, as one witness described it, “stunn[ing].” Chief Katz affirmed
that he had “a reaction” to the video, and explained that he “was concerned about
the content of the video” and that he “had a great deal of questions” about the
officers’ actions. The pilot of the police helicopter that filmed the incident,
Michael Musto, testified that “[t]he video doesn’t look good” because of “[t]he
extended time it took to get [the vehicle’s occupants] in custody with the kicking
and punching,” and he explained that this was the first time in his career he had
ever forwarded a video to a supervisor to review. A reasonable juror hearing this
testimony and seeing the video could have inferred that Antico would have
understood the possible ramifications for his department and his subordinates from
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the incident and from the reports filed about it, and that he would not forget the
major details surrounding the reports only six months later.
Antico responds that the jury could not determine that he intended to
mislead the Bureau because, during his interview, he repeatedly qualified his
statements with caveats like, “I don’t remember” or “I’d have to check.” But the
jury was entitled to find that Antico’s use of these qualifying phrases was
misleading because he was not communicating everything that he knew.
Antico also highlights three circumstances—that he was not present at the
scene of the incident, that he went on vacation for a week afterward, and that he
was interviewed six months after the event—to suggest that he simply forgot many
of the relevant details. To be sure, a jury could have inferred from these details that
Antico’s memory was to blame. But we will not vacate a conviction simply
because the government did not “disprove every reasonable hypothesis of
innocence”; we instead defer to the jury’s rational selection between “reasonable
constructions of the evidence.” United States v. Mieres-Borges, 919 F.2d 652, 656
(11th Cir. 1990) (citation and internal quotation marks omitted). Because a
reasonable jury could have found that Antico’s statements and omissions were
knowingly misleading and intended to hinder the Bureau’s investigation, we reject
Antico’s invitation to second-guess the jury.
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2. Antico Invited any Error in Giving the Allen Charge.
Antico next contends that the district court plainly erred by giving a
modified Allen charge taken directly from our 2016 Pattern Jury Instructions. See
Eleventh Circuit Pattern Jury Instructions (Criminal Cases), Trial Instruction 5, at
685–86 (2016). He argues that the modified Allen charge is unduly coercive
because it mentions that another trial will “serve to increase the costs to both
sides.” He also argues that certain other language from the modified Allen charge
is “confusing and causes undue pressure on the jury” to reach a unanimous verdict.
The doctrine of invited error bars Antico’s challenge to the Allen charge. “It
is a cardinal rule of appellate review that a party may not challenge as error a
ruling or other trial proceeding invited by that party.” United States v. Love, 449
F.3d 1154, 1157 (11th Cir. 2006) (alteration adopted) (citation and internal
quotation marks omitted). It was Antico who first proposed that the district court
should give a “modified Allen charge” if the jury deadlocked a second time. After
the jury deadlocked a second time, Antico again affirmed that he wanted the
district court to give “T-5, the modified Allen charge,” referring to the instruction
from our 2016 Pattern Jury Instructions. Because Antico invited the court to give
the modified Allen charge, he is precluded from challenging it as error now.
Although the government has not argued that this was invited error, an appellate
court may apply the invited-error doctrine sua sponte. See Harden v. United States,
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688 F.2d 1025, 1032 n.7 (5th Cir. Unit B 1982) (explaining that appellate courts
may raise waiver sua sponte); see also United States v. Mancera-Perez, 505 F.3d
1054, 1057 & n.3 (10th Cir. 2007) (explaining that invited error is a kind of waiver
that an appellate court may raise sua sponte).
Even if Antico did not invite the error, his challenge has no merit. The
modified Allen charge from our 2016 Pattern Jury Instructions is nearly identical to
that from our 2010 Pattern Jury Instructions, with the exception that the 2016
version omits the words “obviously” and “only” from language from the 2010
version stating “[o]bviously, another trial would only increase the cost to both
sides.” Compare Eleventh Circuit Pattern Jury Instructions (Criminal Cases), Trial
Instruction 5, at 639–40 (2010), with Eleventh Circuit Pattern Jury Instructions
(Criminal Cases), Trial Instruction 5, at 685–86 (2016). And we have “repeatedly”
held that the 2010 Pattern Jury Instructions’ Allen charge “is appropriate and not
coercive.” United States v. Oscar, 877 F.3d 1270, 1286 (11th Cir. 2017) (citing
United States v. Bush, 727 F.3d 1308, 1320 (11th Cir. 2013); Woodard, 531 F.3d at
1364). Because the 2016 modified Allen charge is substantially similar to the 2010
version, we are bound by our prior precedent to uphold its language as not
inherently coercive. See United States v. Rey, 811 F.2d 1453, 1460 (11th Cir. 1987)
(explaining that we were “bound by precedent” to affirm the use of an Allen charge
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where we had previously “upheld an Allen charge that employed very similar
language” (italics added)). So we alternatively conclude that the district court
committed no error, plain or otherwise, in giving the modified Allen charge.
3. The District Court Did Not Abuse Its Discretion in Denying Antico’s
Post-Verdict Motions Regarding Juror Misconduct.
Federal Rule of Evidence 606(b) provides that “[d]uring an inquiry into the
validity of a verdict or indictment, a juror may not testify about any statement
made or incident that occurred during the jury’s deliberations; the effect of
anything on that juror’s or another juror’s vote; or any juror’s mental processes
concerning the verdict or indictment.” Fed. R. Evid. 606(b)(1). The Rule adds,
“The court may not receive a juror’s affidavit or evidence of a juror’s statement on
these matters.” Id. This rule reflects the “centuries old” principle—also known as
the “no-impeachment rule”—that after a jury has reached its verdict “it will not
later be called into question based on the comments or conclusions they expressed
during deliberations.” Pena-Rodriguez, 137 S. Ct. at 861. Rule 606(b)
“[a]cknowledg[es] the sanctity of jury deliberations and Lord Mansfield’s rule that
‘a witness shall not be heard to allege his own turpitude,’ [and] it seeks to reach an
accommodation between preserving trial by jury and ensuring a just result in each
case.” 3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §
606.04 (Mark S. Brodin ed., Matthew Bender 2d ed. 1997).
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There are four exceptions to the no-impeachment rule. Rule 606(b) provides
for three: a juror may testify about (1) whether “extraneous prejudicial information
was improperly brought to the jury’s attention”; (2) whether “an outside influence
was improperly brought to bear on any juror”; and (3) whether “a mistake was
made in entering the verdict on the verdict form.” Fed. R. Evid. 606(b)(2)(A)–(C).
The Supreme Court has also held that a fourth exception applies when “a juror
makes a clear statement that indicates he or she relied on racial stereotypes or
animus to convict a criminal defendant.” Pena-Rodriguez, 137 S. Ct. at 869.
Outside these four exceptions, Rule 606(b) prohibits inquiry into a wide
range of alleged misconduct. This prohibition includes whether a juror
“misunderstood or disregarded evidence, misunderstood or disregarded the judge’s
instructions, was confused about the legal significance of the jury’s answers to
special interrogatories or the consequences of the verdict, thought that the jury
would be kept out indefinitely until agreement was reached, considered an election
of the defendant not to take the stand, believed that recommending mercy would
avoid the death penalty, was overcome by weariness or unsound arguments of
other jurors, or by a desire to return home.” 3 Weinstein & Berger, Weinstein’s
Federal Evidence § 606.04 (footnotes omitted) (collecting decisions). And outside
of racial bias, Rule 606(b) prohibits inquiries into alleged improper motives or
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prejudices of the jury. See Martinez v. Food City, Inc., 658 F.2d 369, 373–74 (5th
Cir. Unit A 1981) (explaining that “juror testimony regarding the possible
subjective prejudices or improper motives of individual jurors has been held to be
within [Rule 606(b)’s prohibition], rather than within the exception for ‘extraneous
influences,’” as “[t]he proper time to discover such prejudices is when the jury is
being selected and p[ere]mptory challenges are available to the attorney” (quoting
United States v. Duzac, 622 F.2d 911, 913 (5th Cir. 1980)); 3 Weinstein & Berger,
Weinstein’s Federal Evidence § 606.04 (explaining that Rule 606(b) “bars
questions about jurors’ prejudice”).
“No per se rule requires the trial court to investigate the internal workings of
the jury whenever a defendant asserts juror misconduct.” United States v. Cuthel,
903 F.2d 1381, 1382–83 (11th Cir. 1990). For example, where a party alleges that
the jury was subject to extrinsic influence, we have held that a district court has a
duty to investigate “only when the party alleging misconduct makes an adequate
showing of extrinsic influence to overcome the presumption of jury impartiality.”
Id. at 1383 (quoting United States v. Barshov, 733 F.2d 842, 851 (11th Cir. 1984));
accord United States v. Cousins, 842 F.2d 1245, 1247 (11th Cir. 1988). This
standard requires that the defendant “do more than speculate; he must show clear,
strong, substantial and incontrovertible evidence that a specific, nonspeculative
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impropriety has occurred.” Cuthel, 903 F.2d at 1383 (alteration adopted) (citation
and internal quotation marks omitted). Where the evidence presented to the district
court fails to establish that an impropriety occurred that falls within any of the
exceptions to the no-impeachment rule, the district court is justified in declining to
hold a hearing or further inquire into the matter. See Venske, 296 F.3d at 1290
(holding that the district court did not abuse its discretion in declining to hold a
hearing where all but two allegedly improper statements mentioned in an affidavit
concerned the jury’s deliberative process or mental impressions, and where the two
statements did not establish that the jury was influenced by the extrinsic facts they
related).
Antico argues that the district court abused its discretion by failing to
interview a juror who alleged a variety of misconduct, but we disagree. The juror
first alleged that some jurors were biased because they “used their prior
misconceptions about police officers and their feeling of someone needing to be
held accountable, where there wasn’t one bit of evidence showing [that Antico]
was guilty,” and that some jurors made their minds up before deliberating. But we
have explained that “juror conduct during deliberations, such as . . . statements
made during deliberations, including statements calling into question a juror’s
objectivity,” are “internal matters” that are inadmissible under Rule 606(b). United
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States v. Foster, 878 F.3d 1297, 1310 (11th Cir. 2018) (alteration omitted) (citation
and internal quotation marks omitted); see also Martinez, 658 F.2d at 373. Because
allegations that some jurors had improper motives or that they failed to
meaningfully deliberate do not fall within the limited exceptions to the no-
impeachment rule, the district court did not abuse its discretion in declining to
investigate them further.
The juror also alleged that the three holdout jurors were bullied into voting
guilty, and she specifically complained that some jurors made fun of her and
discounted her opinion because she allegedly had a “crush” on Antico. But we
agree with the district court that this alleged bullying is “nothing more than [a]
typical feature[] of jury deliberations,” Foster, 878 F.3d at 1310, and that it falls
squarely within the no-impeachment rule. And although Antico argues that the
“crush” comment suggests gender bias by one juror against the first juror, there are
multiple problems with Antico’s theory that this allegation required further
inquiry: neither this Court nor the Supreme Court has ever suggested that gender
bias warrants an exception to the no-impeachment rule; we have never held that
bias of one juror against another juror constitutes an exceptional circumstance to
the no-impeachment rule; and the statement suggesting that the juror had a crush
does not present “clear, strong, substantial and incontrovertible evidence” that any
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juror actually harbored gender bias against Antico. Cuthel, 903 F.2d at 1383
(citation and internal quotation marks omitted). So because the evidence presented
to the district court failed to allege any impropriety that could possibly fall within
an exception to the no-impeachment rule, the district court did not abuse its
discretion in declining to hold a hearing or otherwise interview the juror. See
Venske, 296 F.3d at 1290.
Antico also briefly argues that the statement that “someone had to be held
accountable” suggests “that the jury was aware of the publicized external
information that two officers previously tried were acquitted so this jury decided to
find Antico guilty.” Although Antico argues this was “clear evidence” that the
jury’s verdict was based upon “outside influences,” that suggestion is an
overstatement. All that the juror’s email suggests is that some jurors felt that the
incident captured on video warranted accountability for those involved, including
for Antico. And Antico’s argument does not make much sense because, assuming
the jurors had heard about the results of the earlier joint trial, they would have
known that Michael Brown was convicted of deprivation of rights under color of
law, so they would not need to search for “someone” to convict for the offense. In
short, Antico has not pointed to “clear, strong, substantial and incontrovertible
evidence” that the jury considered extraneous prejudicial information, Cuthel, 903
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F.2d at 1383, so the district court did not abuse its discretion in failing to
investigate it further.
Antico also argues that the district court abused its discretion in declining to
compel the government to disclose the contents of a conversation that a second
juror had with the spouse of an Assistant United States Attorney. Antico argues
that the contents of this conversation are akin to Brady material and should have
been disclosed so that he could determine whether any juror misconduct occurred,
but we again disagree.
Antico cites no authority, nor are we aware of any, supporting the notion that
we should extend Brady to mandate the disclosure of post-verdict evidence that
might shed light on the nature of the jury’s deliberations. Antico cites Rule 606(b),
but even under the standard for that rule, the district court would abuse its
discretion in failing to further investigate the matter only if Antico pointed to
“clear, strong, substantial and incontrovertible evidence” that impropriety falling
within one of the exceptions occurred. Considering that Antico presented no
evidence other than the facts mentioned above, the district court correctly ruled
that Antico “fail[ed] to present any evidence that impropriety has occurred,” as his
motions “simply state[d] that a juror spoke with the wife of an [Assistant United
States Attorney] about his or her experience as a juror.”
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Antico also argues that the cumulative effect of the errors made his trial
fundamentally unfair, but no error occurred at his trial. So he cannot establish
cumulative error. See House, 684 F.3d at 1210 (“[W]here there is no error or only a
single error, there can be no cumulative error.”).
C. Brown and Antico Must Be Resentenced Because It Is Unclear Whether,
in Calculating Their Guideline Ranges, the District Court Made a
Factual Finding Infected by Legal Error.
The government appeals the sentences of Brown and Antico on the ground
that the district court erred in declining to use aggravated assault as the underlying
offense in calculating their guideline ranges. Section 2H1.1 of the Sentencing
Guidelines provides the standard for determining the base offense level for
Brown’s conviction for deprivation of rights under color of law, 18 U.S.C. § 242:
(a) Base Offense Level (Apply the Greatest):
(1) the offense level from the offense guideline applicable to any
underlying offense;
...
(3) 10, if the offense involved (A) the use or threat of force
against a person . . .
U.S.S.G. § 2H1.1(a). The Guidelines also provide that the base offense level for
Antico’s conviction for obstruction of justice is the greater of 14, id. § 2J1.2(a), or,
if the offense involved obstructing the investigation or prosecution of a criminal
offense, the offense level calculated after applying a cross-reference with respect to
the criminal offense, id. §§ 2J1.2(c), 2H1.1.
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The probation officer determined that the underlying offense that produced
the highest base offense level for Brown’s and Antico’s guideline calculations was
aggravated assault, which was based on Brown’s use of a Taser against J.B. See id.
§§ 2A2.2, 2H1.1(a)(1), 2J1.2(c)(1), 2X3.1. The Guidelines define aggravated
assault as, among other things, “a felonious assault that involved . . . a dangerous
weapon with intent to cause bodily injury (i.e., not merely to frighten) with that
weapon.” Id. § 2A2.2 cmt. n.1. The Guidelines further define “bodily injury” as
“any significant injury; e.g., an injury that is painful and obvious, or is of a type for
which medical attention ordinarily would be sought,” id. § 1B1.1 cmt. n.1(B), and
a “dangerous weapon” as “an instrument capable of inflicting death or serious
bodily injury,” id. § 1B1.1 cmt. n.1(E). Both parties agree that a Taser is a
“dangerous weapon,” so the remaining questions are whether Brown used a Taser
with the “intent to cause bodily injury” and whether the Taser was “involved” in a
“felonious assault.”
The district court determined that Brown’s use of a Taser did not amount to
aggravated assault because there was “[s]ome evidence” suggesting that Brown
used the Taser “to gain compliance rather than to cause bodily injury.” At Brown’s
sentencing, the district court mentioned and apparently credited Officer Brown’s
and Officer Ryan’s officer reports stating that J.B. had refused loud verbal
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commands before Brown used his Taser against him and that J.B. had been
reaching toward the center console at that time. And the district court explained
that it interpreted Officer Monteith’s testimony to suggest that he thought that
Brown had not used his Taser for the purpose of causing bodily injury. So the
district court ruled that “[t]here [was] insufficient evidence to find by a
preponderance of the evidence that Brown’s intent in using the Taser was to cause
bodily injury, rather than to gain control over J.B.” [At Antico’s sentencing, the
district court relied on this factual finding in ruling that Antico’s underlying
offense was not aggravated assault.
As an initial matter, the government contends that the district court’s finding
of intent is “more akin to a legal interpretation” of the Guidelines than a factual
finding and that it “warrants no deference from this Court.” But we agree with our
sister circuits that we review a finding regarding whether a defendant acted with
the intent to cause bodily injury for purposes of section 2A2.2 for clear error. See
United States v. White, 354 F.3d 841, 844 (8th Cir. 2004) (“We review the district
court’s factual findings regarding [the defendant’s] intended use of [a dangerous
weapon for purposes of section 2A2.2] for clear error.”); United States v. Morris,
131 F.3d 1136, 1138 (5th Cir. 1997) (applying a clear-error standard to a finding
that the defendant had an intent to cause bodily injury for purposes of section
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2A2.2). This review is consistent with our ordinary treatment of a determination of
intent as a factual finding. See, e.g., United States v. Bohannon, 476 F.3d 1246,
1251 (11th Cir. 2007) (reviewing a finding of intent for clear error); United States
v. Vallejo, 297 F.3d 1154, 1162 (11th Cir. 2002) (same).
The government argues that the district court erred in determining that
Brown lacked an intent to cause bodily injury because a Taser is “designed” to
inflict bodily harm, so any intentional use of a Taser against a suspect
automatically satisfies the requirement for “intent to cause bodily injury.” This
argument ignores that it is a question of fact for the district court to determine
whether a dangerous weapon is “involved” in a “felonious assault.” U.S.S.G.
§ 2A2.2 cmt. n.1. Here, for example, the district court could have found that
Brown’s use of punches and kicks was part of a felonious assault but that the
assault ended by the time Brown used the Taser, at which time he legitimately used
the Taser to gain control over J.B. In that case, the Taser would not have been
“involved” in a felonious assault, even if its application was close in time to the
assault. So even if the government is correct that an officer’s intentional use of a
Taser against a suspect automatically entails “the intent to cause bodily injury”—
which we do not decide—that fact would not mean that the district court erred in
declining to use aggravated assault as the underlying offense.
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The government also contends that the district court erred in failing to apply
an objective test to determine Brown’s intent, but this argument is unconvincing.
Even if we assume the government is correct that an objective test applies, the
district court cited evidence—the accounts of Officers Brown and Ryan—that
could support an inference that Brown used the Taser in response to J.B.’s refusal
to exit the vehicle and to his having reached toward the center console. As the
government admits, the question whether Brown’s use of the Taser was lawful
turns on whether “that use of force [was] reasonable under the circumstances.” So
based on the district court’s possible view of the evidence judged under an
objective standard of what a reasonable officer would do in Brown’s place, one
could view the district court’s ruling as stating simply that there was an insufficient
basis to find that Brown’s employment of the Taser was unreasonable.
The government next argues that the district court clearly erred in ruling that
Brown’s intention to bring J.B. under control excluded the possibility that he also
intended to cause bodily injury. Brown responds that the government’s “dual intent
theory”—that Brown could have intended both to cause bodily injury and to gain
control of J.B. at the time he used his Taser—is subject to plain-error review
because it was not raised below. The government replies that we should review this
argument de novo because it is a new argument brought in support of a preserved
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claim of error. We have held that to preserve an objection to a sentencing
determination, a party “must raise that point in such clear and simple language that
the trial court may not misunderstand it.” United States v. Massey, 443 F.3d 814,
819 (11th Cir. 2006) (citation and internal quotation marks omitted). But once a
party has preserved an issue, it may “make any argument in support of that claim;
parties are not limited to the precise arguments they made below.” Yee v. City of
Escondido, 503 U.S. 519, 534 (1992); see also Hi-Tech Pharm., Inc. v. HBS Int’l
Corp., 910 F.3d 1186, 1194 (11th Cir. 2018) (“Parties can most assuredly waive or
forfeit positions and issues on appeal, but not individual arguments.” (alterations
adopted) (citation and internal quotation marks omitted)). Because the government
preserved the specific ground for review implicated by its dual-intent theory—
namely, that Brown had the intent to cause bodily injury at the time he used a
Taser—it may offer new arguments to support that position. See Black v.
Wigington, 811 F.3d 1259, 1268 (11th Cir. 2016) (“Although new claims or issues
may not be raised, new arguments relating to preserved claims may be reviewed on
appeal.” (quoting Pugliese v. Pukka Dev., Inc., 550 F.3d 1299, 1304 n.3 (11th Cir.
2008)).
We also agree with the government that the record leaves doubt about
whether the factual finding was infected by a legal error. The district court
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repeatedly phrased its finding as being that the government failed to establish that
“Brown’s intent in using the Taser was to cause bodily injury, rather than to gain
control over J.B.” This language reflected Brown’s “single-intent” theory that
Brown’s intent was either to cause bodily injury or to gain control, but not both.
Because a defendant can have more than one intent and an officer can both intend
to control a suspect and also intend to cause him injury, it is legal error to conclude
that the presence of some evidence of an intent to control necessarily excludes the
possibility that the defendant also acted with the intent to injure. Based on this
record, we have no way of knowing whether the district court actually applied this
erroneous “single-intent” standard in finding that Brown lacked the requisite intent.
If a district court applies an incorrect legal standard in reaching a factual
conclusion, the resulting finding is not insulated by the clear-error standard. See
Holton v. City of Thomasville Sch. Dist., 490 F.3d 1257, 1261 (11th Cir. 2007)
(“The clear-error standard governs unless the district court ‘applies an incorrect
legal standard which taints or infects its findings of facts.’” (quoting NAACP,
Jacksonville Branch v. Duval Cty. Sch., 273 F.3d 960, 965 (11th Cir. 2001)). And
vacatur and remand are warranted when “we cannot say” whether an incorrect
legal standard “affect[ed] or influence[d] the district court’s [factual] conclusion.”
United States v. Kendrick, 22 F.3d 1066, 1069 (11th Cir. 1994). Because we are
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not sure that the finding that Brown lacked the intent to cause bodily injury is free
from legal error, and this finding caused the district court to decline to apply
aggravated assault as the underlying offense, we must vacate Brown’s sentence
and remand for resentencing. Because the district court relied on this same factual
finding in ruling that Antico’s underlying offense was not aggravated assault, we
also vacate Antico’s sentence and remand for resentencing.
IV. CONCLUSION
We AFFIRM the convictions of Brown and Antico, VACATE their
sentences, and REMAND for resentencing.
59