United States v. Charles Schwarz, Thomas Wiese, and Thomas Bruder, Justin A. Volpe and Michael Bellomo
Docket: 00-1479
Court: Court of Appeals for the Second Circuit; February 27, 2002; Federal Appellate Court
Defendants-Appellants Charles Schwarz, Thomas Bruder, and Thomas Wiese appeal their convictions following two jury trials related to the assault of Abner Louima on August 9, 1997, while he was in custody at the 70th Police Precinct in Brooklyn, New York. They, along with defendant Justin Volpe, were charged in a twelve-count superseding indictment on March 3, 1999, with conspiracy and deprivation of Louima's civil rights under 18 U.S.C. §§ 241 and 242 for the assaults in a police car and a bathroom. Schwarz and Volpe specifically faced charges for sexually assaulting Louima in the bathroom, while Schwarz, Bruder, and Wiese were charged with conspiracy to obstruct justice under 18 U.S.C. §§ 371 and 1503 for providing false statements to state and federal prosecutors.
During the first trial, the charge of conspiracy to obstruct justice was severed from the other counts. Before the trial concluded, Volpe pleaded guilty to six counts, including those relating to the assaults. The jury found Schwarz guilty of conspiracy and violation of Louima's civil rights concerning the bathroom assault but acquitted Schwarz, Wiese, and Bruder of charges related to the assaults in the police car.
The jury at the second trial convicted Wiese, Bruder, and Schwarz of conspiracy to obstruct a federal grand jury proceeding by falsely asserting that Schwarz did not participate in an assault. Schwarz received a sentence of 188 months in prison, five years of supervised release with a firearm possession ban, a $300 special assessment, and $277,495 in restitution to Louima. Bruder and Wiese were each sentenced to 60 months in prison, three years of supervised release with a firearm ban, and a $100 special assessment. The appellants raised various challenges to their convictions, with the court focusing on critical issues without addressing all claims.
The first part of the review covers the initial trial's facts, including Schwarz's claims regarding an unwaivable conflict of interest affecting his attorney, which potentially necessitated disqualification, and whether the district court wrongly denied a hearing on a new trial motion related to jury exposure to extrinsic information during deliberations. The second part examines the second trial's facts and the collective challenge by all three appellants regarding insufficient evidence of conspiracy to obstruct justice under 18 U.S.C. § 1503.
The court concluded that Schwarz's convictions for civil rights violations should be vacated and remanded for a new trial due to his attorney's conflict of interest and the jury's exposure to prejudicial information. Furthermore, the court reversed the conspiracy convictions for all three appellants due to inadequate evidence.
Pre-trial proceedings revealed that after the 1997 assault on Louima, attorneys Worth and London were hired to represent Schwarz and Bruder, respectively, through the Policeman's Benevolent Association (PBA) to avoid conflicts of interest. Following Schwarz’s indictment, the Worth firm, formed by Worth, London, and others, secured a $10 million retainer from the PBA to represent police officers in various legal matters. The government alerted the district court to potential conflict issues arising from the joint representation of Schwarz and Bruder by attorneys from the same firm and their agreement with the PBA, prompting a recommendation for a hearing.
On June 17, 1998, Worth, representing himself and London, communicated with the district court, stating that substitution of counsel was unnecessary. He argued that the Worth firm had not represented any PBA officials or delegates called to testify before the grand jury and claimed no de facto conflict existed between Officer Schwarz and Officer Bruder's defenses. Worth revealed intentions to seek separate trials, with Bruder potentially providing exculpatory testimony. Schwarz and Bruder were informed of the possible conflicts and agreed to waive their right to conflict-free counsel, although Wiese's defenses were not addressed. Both defendants submitted identical affidavits acknowledging the risks of joint representation, asserting their defenses were consistent and desired to retain Worth and London as counsel, without mentioning potential conflicts related to the PBA's retainer.
Subsequent letters from the government and Worth's firm highlighted the inherent risks of dual representation, particularly concerning potential PBA witnesses at trial. The government contended that the representation of both defendants and the PBA created an actual conflict that could not be waived. In contrast, Worth and London argued that disqualification without a Curcio hearing would infringe upon Schwarz's and Bruder's Sixth Amendment rights, insisting that any conflict arose solely from their joint representation, which could be waived.
During a hearing on September 11, 1998, the district judge advised Schwarz and Bruder of the risks associated with their joint representation, outlining potential conflicts such as the inability to provide independent advice on plea deals, the possibility of conflicting defenses, and the risk of revealing privileged information between the attorneys.
Conflicts related to the PBA retainer were highlighted by the district judge, who noted that the PBA and its president, Lou Matarazzo, were defendants in a civil suit filed by Louima, alleging conspiracy and negligent supervision. The judge indicated that developments in the criminal case could affect the civil case and that testimony from the criminal proceedings would be pertinent. He warned defendants Schwarz and Bruder of potential differing interests between them and the PBA, which could impact their legal counsel's ability to provide optimal advice, particularly regarding plea deals or witness examinations. The judge remarked on the implications of a significant contract for the PBA, suggesting it could influence the representation of the defendants. Following this, a Curcio hearing was scheduled, where independent counsel was appointed for Schwarz and Bruder, and the Worth firm was restricted from representing the PBA in the civil suit.
During the hearing, Schwarz acknowledged potential conflicts due to shared legal representation and the PBA's interests, which could affect the defense strategy, witness calls, and plea negotiations. Despite recognizing these conflicts, Schwarz opted to retain his lawyer. After independent counsel confirmed that Schwarz understood the conflicts, the court accepted his waiver of the right to conflict-free counsel, allowing the Worth firm to continue representing both defendants. The first trial commenced on May 4, 1999, covering all charges except one count of conspiracy to obstruct justice, which was severed for a later trial.
On August 9, 1997, New York City police officers, including Appellants Schwarz, Bruder, Wiese, and defendant Volpe, responded to a street fight at Club Rendez-Vous in Brooklyn around 4:00 a.m. During the incident, Volpe mistakenly believed that Louima struck him during a verbal altercation, leading to Louima's arrest by Schwarz, Wiese, and Officer Eric Turetzky. Louima was placed in the back of the patrol car driven by Schwarz, with Wiese in the passenger seat. Louima reported being assaulted by the officers during two stops before arriving at the 70th Precinct, but these specific allegations were not part of the current appeal since Volpe pled guilty and the others were acquitted.
Upon arrival, Louima was searched by Schwarz, who removed his wallet and cash, and Louima's pants reportedly fell down during this search. Schwarz and Sergeant Jeffrey Fallon counted Louima's money and filled out a "pedigree card" with his information. Officer Mark Schofield observed Volpe with a stick-like object and later saw Schwarz leading Louima toward the back of the stationhouse, where holding cells and a bathroom were located. Turetzky corroborated that Louima's pants were down around his ankles during this time, while Schofield did not see Louima's bare buttocks. Sergeant Fallon testified that Louima was not taken to the back until after the pedigree card was completed, asserting that at that moment, Schwarz was physically close to Louima, maintaining control over him. The events following Louima's processing at the front desk were crucial to the government's case and were disputed in the trials, with contradicting evidence introduced only during the second trial.
Schofield observed Schwarz leading Louima to the back of the precinct shortly before he, Wiese, and other officers waited at the front desk to go to the hospital. Volpe later emerged from the back area and returned gloves he had borrowed from Schofield. Louima testified that two officers led him to the bathroom and assaulted him, identifying Volpe as one of the assailants, but could not identify the second officer, whom he described only as "the driver." He was unable to identify Schwarz from a photo array or in court. Louima noted similarities in the appearance of the driver and another officer. The government presented evidence suggesting that "the driver" referred to Schwarz, supported by the fact that he was the patrol car driver and that Louima stated the driver handcuffed him, consistent with Turetzky’s testimony that Schwarz was involved in Louima’s arrest. Louima also claimed the driver searched him at the front desk, corroborated by Fallon and Turetzky. Louima described the assault in the bathroom, where the driver participated alongside Volpe. Turetzky later witnessed Volpe carrying a stick and leading Louima after the assault. The defense introduced excerpts from Turetzky's interview with the Internal Affairs Bureau conducted shortly after the incident.
ET observed a prisoner being removed from a bathroom while still cuffed and with his pants down. Although ET initially stated uncertainty about which officer was involved in the transport, he later confirmed seeing Officer Schwarz take the defendant into the bathroom. ET was uncertain if Officer Volpe or another officer was responsible for removing the defendant. He recalled seeing Officer Volpe holding a broken piece of wood shortly after. ET described an unidentified officer as a tall, broad white male but expressed confusion about the events as he walked down the stairs.
Following the incident, the defendant, Louima, received medical treatment for severe injuries, including surgery for internal damage. Several officers present during the incident, including Volpe, Schwarz, Wiese, and Schofield, also sought treatment for minor injuries. Schofield noted that Volpe made a statement about having "broken a man down" while at the hospital. Volpe later pled guilty to multiple charges, admitting that another officer was present during the incident but failed to intervene or report it.
The jury continued to hear evidence on assault charges against defendants Schwarz, Bruder, and Wiese, while being informed by the district court of Volpe's guilty plea. Details of Volpe's allocution were not disclosed, and he was not called to testify. The court instructed the jury that Volpe's plea could not be considered as evidence against the other defendants. Schwarz's defense claimed that Volpe acted alone, arguing that the alleged victim, Louima, fabricated the presence of another officer to portray systemic police brutality. On June 2, 1999, the jury convicted Schwarz of participating in a sexual assault with Volpe but acquitted all defendants of the patrol car assaults.
Post-trial, Schwarz sought a new trial, claiming the jury's verdict was influenced by extraneous information regarding Volpe's plea. He presented affidavits from jurors stating they learned during deliberations about Volpe's guilty plea and hints that another officer was involved. They claimed this knowledge would have created reasonable doubt about Schwarz's guilt. The district judge denied the motion, citing that jurors did not indicate that the extraneous information affected their deliberations, significant evidence existed regarding another officer's presence, jurors are presumed to follow instructions, and policy reasons against post-verdict inquiries.
On appeal, the appellants contended that the government violated its disclosure obligations by failing to provide compelled statements from co-workers and other witnesses gathered during the investigation of the Louima assault.
The court mandated the government to provide sealed access to all GO-15 statements, related summaries, and FBI interview reports for the appellants and the court, under a protective order, allowing for supplemental briefings. The appellants claimed that new disclosures included exculpatory and impeachment evidence improperly withheld by the government, violating Brady. They submitted an affidavit from retired police sergeant Patrick Walsh, who stated that during an unrecorded interview, Turetzky indicated he saw either Officer Wiese or Officer Schwarz escorting Louima, though he could not identify which officer it was. The case was remanded to the district court to assess whether the Walsh affidavit and other statements warranted a new trial due to potential Brady and Giglio violations or newly discovered evidence.
Upon remand, the district court conducted a hearing with testimonies from Turetzky, Walsh, and other investigators. The court found Walsh's affidavit and testimony regarding Turetzky's statements to be not credible. It determined that the materials from the GO-15 statements were not Brady material as they were either inculpatory or immaterial and did not undermine the prosecution's case. Consequently, the district court ruled that the appellants were not entitled to a new trial based on the alleged Brady violations or newly discovered evidence, asserting that the evidence did not meet the materiality standard needed to impact the verdict's reliability.
Separately, appellant Schwarz, with new counsel, raised a conflict of interest argument, asserting that his trial attorney's loyalties to the Police Benevolent Association (PBA) and financial interests created an actual conflict that adversely impacted his legal representation, infringing upon his Sixth Amendment right to effective counsel.
Schwarz asserts two primary claims regarding Worth's representation: (1) the conflict of interest was too severe to be waived, and (2) the waiver obtained during the district court's Curcio hearing was ineffective due to a lack of awareness about how Worth's interests in the PBA retainer conflicted with his defense.
The Sixth Amendment guarantees a defendant the right to effective, conflict-free counsel. Case law establishes that this right includes representation unburdened by conflicts of interest, and whether a violation occurred is assessed as a mixed question of law and fact. Typically, a defendant must show prejudice to claim ineffective assistance; however, if an actual conflict of interest exists, prejudice is presumed.
An actual conflict arises when the attorney's interests diverge from the defendant’s on significant legal or factual matters. Schwarz argues that such a conflict emerged when Worth's firm entered into the PBA retainer. Even if the retainer initially posed only a potential conflict, it escalated to an actual conflict following the filing of the Louima civil suit. The PBA's interests in defending against the lawsuit—accusing its agents and president of conspiracy—conflicted with Schwarz's defense strategy, which aimed to implicate others besides Volpe in the assault.
The Worth firm was prohibited by the district court from officially representing the PBA or its members in the Louima civil suit; however, Worth still had a duty to avoid actions harmful to the PBA’s interests. The firm's retainer agreement with the PBA included provisions for withholding part of the $10 million retainer until the PBA was satisfied with the firm’s performance and allowed the PBA to terminate the contract with thirty days' notice, creating a strong incentive for Worth to maintain a good relationship to facilitate contract renewal.
Officer Schwarz faced charges related to the assault on Louima, who claimed he was attacked by at least two officers. Schwarz had a strategic interest in implicating another officer, which could have conflicted with the PBA's defense in the civil suit. This situation created an actual conflict between Worth's representation of Schwarz and his obligations to the PBA.
To establish ineffective assistance of counsel, Schwarz must demonstrate that this conflict adversely impacted Worth’s performance, specifically that a "lapse in representation" occurred. He needs to show that a plausible alternative defense strategy was available that Worth did not pursue due to conflicting loyalties. The standard does not require proving that the lapse affected the trial's outcome or that the alternative strategy was reasonable. Schwarz contends that Worth’s commitment to the PBA led him to neglect the strategy of implicating Officer Wiese, which was supported by statements made during the investigation.
Wiese and Bruder provided proffer statements indicating Wiese escorted Louima to the bathroom with Volpe, and Wiese was present during Volpe's assault. Schwarz's attorney, Worth, chose not to pursue the strategy of implicating Wiese as the second officer, instead advancing a theory that Volpe acted alone and that Louima fabricated the presence of another officer to portray systemic police brutality. This approach became less credible after Volpe entered a guilty plea, during which his attorney indicated Volpe could exonerate Schwarz. By the time of Volpe's plea, Worth had knowledge that Volpe was willing to testify Schwarz was not in the bathroom, and Louima had not identified Schwarz, noting the similarity between Schwarz and Wiese. Additionally, both Wiese and Bruder's statements supported the notion that Wiese was the one in the bathroom with Louima. Worth had the opportunity to create reasonable doubt by arguing confusion over the officers' identities and that Wiese was the second officer. Following the trial, Worth filed a motion for a new trial, acknowledging the significance of Volpe's potential testimony, which the government failed to disclose. Despite knowing of Wiese's implication and the chance to call Volpe as a witness, Worth continued to promote the theory that Volpe acted alone, which was later criticized by the district court as "fanciful." The government argued that Worth's decisions were tactically sound, but the reasons presented undermined this claim.
Schwarz is not required to demonstrate that the forgone strategy was reasonable or that it would have altered the trial's outcome; it suffices to show that the strategy was plausible and not pursued. The government's assertion that Worth attempted to implicate Wiese but was hindered by the district court's evidentiary rulings is rejected. Although Worth sought to sever the trial and disqualify Wiese’s attorney to introduce statements made by Wiese, his actions aimed to avoid implicating Wiese, aligning with the conflict he faced. Worth’s request for severance was not based on presenting a defense that Wiese was involved in escorting Louima, but rather to allow Wiese and Bruder to testify only that they did not witness Schwarz escort Louima, contingent upon their trial occurring first.
Schwarz's motion to disqualify Wiese's counsel did not aim to introduce Wiese's statement regarding escorting Louima but sought to present different statements about Wiese’s claims made during Louima's civil action. An affidavit from Worth indicated that Wiese had told Louima's attorneys he did not see Schwarz strike Louima and that only Volpe and Louima were in the bathroom, implying Volpe acted alone. Wiese's admission that he, rather than Schwarz, escorted Louima was not included in the statements, which were deemed inadmissible hearsay by the district court, leading to the denial of the disqualification and severance motions. The court found no evidence that Wiese and Bruder would actually testify for Schwarz, and it remained uncertain if the court was informed of Wiese's admission during the relevant hearings.
Pursuit of a "plausible alternative strategy" implicating Officer Wiese would have conflicted with Worth's loyalty to the PBA and his self-interest, leading to Worth's failure to adopt this strategy. Implicating a second officer would have bolstered Louima's civil claim of being assaulted by multiple officers, while portraying Volpe as acting alone aligned more with the defense. The conflict intensified when Volpe, who pleaded guilty, indicated he could testify that Schwarz was not the second officer. Testifying to the presence of another officer would conflict with Worth's obligations to his other clients and support Louima's conspiracy claim against the PBA. Worth's inaction regarding Wiese can be attributed to this conflict, as there was no evidence supporting that Volpe acted alone, contrary to Louima's and Volpe's potential testimonies suggesting a second officer's involvement. Worth's reliance on attacking Louima's credibility was deemed inadequate by the district court. The conclusion is that Worth's actual conflict adversely impacted his defense of Schwarz, constituting a violation of Schwarz's Sixth Amendment right to effective counsel unless Schwarz waived this conflict at the Curcio hearing. The waiver could only defeat Schwarz's claim if it was determined that the conflict was not so severe as to be unwaivable or if the waiver was not made knowingly and intelligently. Ultimately, the conflict was deemed unwaivable, negating the need to evaluate the waiver's validity.
A valid waiver of an actual or potential conflict of interest cannot be invalidated solely because the conflict later impacts an attorney's performance; doing so would undermine the waiver's purpose. However, certain conflicts are non-waivable if they are so serious that no rational defendant would knowingly accept representation under those circumstances. An attorney must be disqualified in such cases, regardless of the defendant's willingness to waive the right to conflict-free counsel.
The distinction between waivable and unwaivable conflicts was highlighted in United States v. Fulton, where the attorney faced accusations related to the defendant's trial. The district court obtained a waiver, but the appellate court deemed it ineffective, asserting that the attorney's self-interest would compromise their representation. Conflicts arising from self-interest, as opposed to ethical obligations to others, are viewed differently.
In this context, Worth's representation of Schwarz was in conflict with his ethical duties to the PBA and his substantial self-interest stemming from a lucrative retainer agreement with them. Similar to the Fulton case, this conflict permeated the defense, making any waiver ineffective. The potential for Worth to prioritize the PBA's interests over Schwarz's created a scenario where no rational defendant would desire representation from an attorney whose actions were driven by self-preservation. Thus, the conflict was deemed severe enough to warrant disqualification of Worth as counsel for Schwarz.
Schwarz's counsel experienced an actual conflict of interest that adversely impacted his representation, rendering the conflict unwaivable. Consequently, Schwarz's conviction from the first trial must be vacated, and a new trial is mandated. On appeal, Schwarz contends the district court erred by not conducting a hearing to assess whether extrinsic information influenced the jury's deliberations. The district court emphasized the sanctity and secrecy of jury deliberations, noting that probing jurors post-verdict could lead to harassment, undermine deliberation, and invite jury tampering. Despite these concerns, the court acknowledged a defendant's constitutional right to an impartial jury free from extraneous influences, asserting that reasonable grounds for inquiry must be thoroughly examined, often necessitating juror questioning. The district court declined to hold a hearing partly because Schwarz's attorney improperly discussed the case with jurors without notifying the court or opposing counsel, highlighting the need to protect jurors from potential harassment by parties seeking evidence of misconduct.
Post-trial juror interviews present inherent risks, as some jurors may misinterpret events or share inadmissible statements, potentially undermining public confidence in verdicts. To mitigate this, courts require that notice be given to opposing counsel and the court prior to any post-verdict juror inquiry, which must occur under strict judicial supervision. Despite allegations of improper unilateral discussions initiated by counsel, these do not justify denying an evidentiary hearing regarding a potential violation of the right to an impartial jury free from extraneous influences. Federal Rules of Evidence allow jurors to testify about external prejudicial information but prohibit them from discussing deliberation specifics. A duty to investigate arises when a party presents sufficient evidence of extrinsic influence to challenge the presumption of jury impartiality. In this case, the district court's dismissal of juror affidavits as lacking clear evidence of impropriety is contested, as the affidavits provide specific allegations of inappropriate exposure to external information that merit further inquiry. The requirements for evidentiary hearings necessitate only that the allegations be substantial enough to warrant investigation, not that they be irrefutable.
The trial court is required to conduct a hearing with all interested parties present rather than making ex parte decisions. The district court made an error by denying Schwarz an evidentiary hearing to assess the truth of allegations regarding jury exposure to evidence about co-defendant Volpe's plea. Although the government contended that any error was harmless due to abundant trial evidence showing a second officer's presence, this argument is not universally applicable. The Supreme Court has indicated that not every juror's exposure to extrinsic information necessitates a new trial, emphasizing that due process ensures juries base decisions solely on trial evidence while judges monitor and address potential prejudicial occurrences.
In analyzing whether the jury's exposure was indeed harmless, the nature of the extrinsic information must be considered, particularly since a co-defendant's admission can significantly impact a case. News of Volpe's statement about a second officer supported witness Louima's testimony. The analysis is complicated by the defense's reliance on a flawed theory and the failure to call Volpe as a witness, leading to a detrimental situation for Schwarz. The jury's exposure to Volpe's assertion, combined with the defense's strategy, likely led jurors to assume that Schwarz was the second officer mentioned. Therefore, the district court's failure to hold an evidentiary hearing cannot be dismissed as harmless, necessitating a consideration of the appropriate remedy for this error.
A remand for an evidentiary hearing may be warranted to investigate allegations and assess the impact of extrinsic information on the jury's verdict, potentially justifying a new trial, as supported by case law such as Moten, 582 F.2d at 666-67. Alternatively, some cases, like United States v. Camporeale, 515 F.2d 184, 188-89, support ordering a new trial directly. However, due to the conflict of interest involving Schwarz's attorney, a new trial is mandated without needing to resolve this issue.
The second trial of Schwarz, Bruder, and Wiese commenced on February 7, 2000, focusing on Count Twelve of the superseding indictment, which charged conspiracy to obstruct a federal grand jury investigation into the sexual assault of Louima. The indictment alleged that Bruder and Wiese provided false information to exculpate Schwarz regarding the assault. The objective of the conspiracy was to impede federal judicial proceedings in violation of 18 U.S.C. § 1503.
The government's evidence at the second trial was categorized into three groups:
1. Evidence similar to that presented in the first trial concerning the events of August 9, 1997.
2. Evidence of extensive communications among the defendants following the initiation of a state investigation on August 11, 1997, including over 250 phone calls and in-person meetings aimed at coordinating their responses to the investigation.
3. Statements made by the defendants or their attorneys to law enforcement during the investigations, which conflicted with witness accounts from both trials, indicating that their narratives changed over time in response to investigative developments, particularly surrounding Schwarz's arrest on August 15, 1997.
Two statements made by Wiese and Bruder were charged as overt acts in a conspiracy to obstruct justice. The Internal Affairs Bureau (IAB) and the Kings County District Attorney's Office initiated a state investigation into an assault on Louima on August 10, 1997, the day after the incident. IAB Sergeant William Hargrove interviewed Louima in the hospital on August 10. The IAB designated the 70th Precinct stationhouse as a crime scene on August 11 and conducted an examination. On August 13, IAB investigators arrested Officer Volpe, and that same day, the FBI began its federal investigation.
On August 15, Turetzky informed IAB investigators that he witnessed Schwarz leading Louima to the bathroom while Volpe held a stick. Schwarz was arrested on the same day and later released on bail. Officer Immitt testified that Wiese indicated that after bringing Louima to the stationhouse, Schwarz searched him at the front desk before Volpe took over control. Immitt also noted that Wiese spoke briefly with Bruder in the back before returning to the front desk.
After Schwarz's arrest, he relayed to Immitt a similar account of events, claiming he remained near the front desk. On August 16, Bruder provided statements consistent with Wiese and Schwarz, noting that Louima's pants were up when Volpe led him away and that he searched Louima for property, discarding a business card for a male sex club found in Louima's wallet. Subsequently, media reports emerged identifying Schwarz as the officer who took Louima toward the bathroom, likely referencing Turetzky's earlier statements.
Wiese provided testimony to investigators from the District Attorney's Office and the Internal Affairs Bureau (IAB) under a written proffer agreement, which protected his statements from being used against him in any prosecution except for perjury or obstruction of justice. The DA retained the right to utilize evidence derived from Wiese’s statements in a criminal case against him. Wiese’s account differed significantly from earlier statements made to another investigator, Immitt, as he described leading Louima towards the bathroom with Officer Volpe, who then pulled Louima into the bathroom. Wiese remained outside the bathroom but heard a scuffle and the sound of Louima hitting the floor multiple times, suggesting that Volpe might have been "tuning up" Louima. After about two minutes, Wiese entered the bathroom with the stationhouse dog and saw Louima handcuffed and face down on the floor, with Volpe standing over him, holding a stick and pressing down on Louima's back. Wiese noted Louima’s pants were down, and while he observed feces on Louima, there was no visible blood on Volpe. Wiese attempted to assist Louima but witnessed Volpe assaulting him, culminating in Volpe discarding the stick in a nearby garbage can. Wiese stated throughout the interview that Officer Schwarz remained at the desk during the incident. The following day, Bruder's attorney sought a similar proffer agreement with IAB, with Bruder's proffered statement aligning more closely with Wiese's than his earlier testimony, claiming he saw Volpe and Wiese escorting Louima toward the bathroom.
Volpe entered the bathroom with Louima while Wiese waited outside, distracted by a stray dog. Gilmartin testified that Bruder claimed Volpe had struck Louima with a stick after Louima was taken away, later identified by Bruder's attorney as a mop handle. Bruder also mentioned cleaning up dog feces outside the bathroom with a mop he had placed against the wall. On August 27, 1997, a federal grand jury was convened to investigate the assaults. Bruder received a subpoena for his memo book from FBI Agent Richard DeFilippo on November 6, 1997, and subsequently met with FBI agents and U.S. Attorney's Office representatives to enter a proffer agreement. This agreement stipulated that Bruder's statements would not be used in the government's case-in-chief except for charges like false statements or obstruction of justice, although they could be used for impeachment or rebuttal purposes.
Bruder's statements to federal investigators were consistent with his earlier proffer and included details about Volpe and Wiese escorting Louima to the bathroom, with Wiese lagging behind. Bruder noted that Louima's pants were up when taken to the bathroom and mentioned finding an advertisement in Louima's wallet which he discarded. Bruder also recounted Volpe's statement about hitting Louima with a mop handle and added a new claim about seeing Louima on his knees with his pants down in his jail cell post-assault, describing Louima as appearing intoxicated. Schwarz's testimony at the second trial contradicted his earlier statements, asserting that Louima's pants had not fully dropped during a search at the front desk, and mentioned having difficulty completing paperwork due to a hand injury.
Fallon and Turetzky testified that the pedigree card for Louima was completed before he was taken from the front desk, whereas Schwarz stated he was still filling it out when Louima was led away and finished only after Louima had left. Immitt recalled that Schwarz claimed Volpe escorted Louima alone, but Schwarz later suggested it might have been another officer, Tommy Wiese, though he was not certain. Despite Immitt's testimony that Schwarz remained near the front desk, Schwarz testified he left to search for weapons Louima might have left in a patrol car and encountered no one during this search. Upon returning to the precinct, he found Wiese behind the desk.
During the first trial, Volpe admitted to sodomizing Louima in the presence of another officer, implying that the officer would not intervene or report the incident, although he did not name this officer. In the second trial, Volpe claimed he encountered Wiese with Louima and asserted control over him, stating that he led Louima into a bathroom instead of directly to the Arrest Room, with Wiese following. Volpe denied that Schwarz was present during the assault, which he described in detail, noting that Wiese was also in the bathroom but did not intervene. Volpe claimed he acted alone in the assault, maintaining that Louima was restrained and faced down throughout the event. Testimony from Turetzky and Schofield contradicted the defense's account of Wiese's whereabouts during the assault.
Turetzky testified he observed Schwarz escorting Louima away while Wiese remained at the front desk with another prisoner. Schofield noted that shortly after seeing Schwarz with Louima, he saw Wiese conversing with Fallon at the front desk, appearing normal. On March 6, 2000, a jury convicted Bruder, Schwarz, and Wiese for conspiracy to obstruct justice. In their appeal concerning the sufficiency of evidence for their convictions under 18 U.S.C. §§ 371 and 1503, the appellants argued that the evidence did not support a conviction as defined by the Supreme Court in United States v. Aguilar. To challenge the sufficiency, appellants must show that no rational jury could find all elements of the crime beyond a reasonable doubt.
The court found that the evidence was insufficient to uphold the convictions, agreeing with the appellants' argument. The conspiracy charged related to the "omnibus clause" of § 1503, which prohibits corruptly influencing the administration of justice. The term "administration of justice" requires a pending federal judicial proceeding. For a conspiracy conviction under § 1503, the government must prove the defendants entered an agreement with knowledge of a pending proceeding and with intent to impede it, along with at least one overt act in furtherance of the conspiracy. The court concluded that the government's evidence did not meet these legal requirements, although a jury could find that Schwarz, Bruder, and Wiese generally agreed to impede investigators by providing a false narrative after the investigation into Louima's assault commenced.
Appellants provided inconsistent accounts during investigations, initially stating that only Volpe escorted Louima to the bathroom while Wiese and Schwarz remained at the front desk. However, after media reports indicated that Schwarz might have escorted Louima, Wiese and Bruder altered their statements, claiming Wiese accompanied Volpe instead. Witness testimonies contradicted this, indicating that Schwarz had indeed left the front desk to escort Louima. There was substantial evidence suggesting that the appellants conspired to mislead investigators, which would have warranted a jury finding supporting such a conspiracy under 18 U.S.C. 1001. However, the conspiracy charged in Count Twelve of the indictment specifically related to obstructing justice under 18 U.S.C. 1503. The critical issue to resolve was whether the appellants' agreement included conduct that fell under the prohibitions of 1503.
Furthermore, the second element of the conspiracy charge involved whether the appellants obstructed justice with knowledge of a pending federal grand jury investigation into the Louima assault. The government argued it did not need to prove that the grand jury was convened when the conspiracy began, only that the appellants, as experienced officers, could anticipate a federal investigation. This was supported by precedent cases indicating that knowledge of a potential judicial proceeding suffices, provided such a proceeding indeed followed. However, mere awareness of the investigation is insufficient for a conviction under 1503, as established by the Supreme Court.
The government asserts that Bruder had actual knowledge of the federal grand jury investigation based on newspaper articles from August 1997 and a subpoena he received on November 6, 1997, just prior to making allegedly false statements to investigators. The court agrees that Bruder's knowledge was established; however, there was no evidence that the other appellants received subpoenas or communicated with Bruder between November 6 and November 8, 1997, when Bruder reported to investigators. The court concludes it need not determine the appellants' knowledge since there was insufficient evidence to prove their intent to obstruct justice under 18 U.S.C. § 1503. The third element of the conspiracy charge requires a specific intent to obstruct the grand jury, which the government failed to demonstrate. The only link to the federal investigation was Bruder's statements made on November 8, 1997. The court references the Supreme Court case United States v. Aguilar, where a judge's false statements during an ongoing grand jury investigation were found insufficient to prove intent to obstruct under § 1503. In Aguilar, despite the judge's lies and awareness of the grand jury investigation, the Supreme Court reversed his conviction, emphasizing the necessity of proving specific intent to obstruct.
The Court established a "nexus" requirement for intent under 18 U.S.C. § 1503, necessitating that the defendant's actions exhibit a "relationship in time, causation, or logic" to a judicial proceeding, such as a federal grand jury, and have the "natural and probable effect" of obstructing that proceeding. The Supreme Court upheld the Ninth Circuit's reversal of Judge Aguilar's conviction, ruling that his false statements to an investigating agent did not demonstrate the specific intent needed to obstruct the federal proceeding. The Court clarified that mere awareness of a pending grand jury did not suffice for establishing intent, particularly since there was no evidence that Aguilar knew the officers would testify before the grand jury.
The appellants argued that their case is analogous to Aguilar, as the evidence only showed false statements made to investigators, thus insufficient for their convictions. The government contended that Aguilar was not applicable because it dealt with a substantive violation, while the current case involved conspiracy. However, for a conspiracy conviction, the government must demonstrate that the defendants knowingly engaged in the conspiracy with specific intent to commit the underlying offense. The Court's interpretation of Aguilar emphasized the necessity for intent directed specifically at obstructing judicial or grand jury proceedings. Aguilar's false statements were deemed insufficient since they did not directly influence the grand jury, contrasting with actions that would guarantee the material's consideration by the grand jury.
The government argued that Bruder's initiation of a meeting with federal investigators demonstrated his intent to influence a grand jury investigation, akin to the case of Aguilar. However, the Supreme Court in Aguilar rejected a similar argument, stating that mere awareness of an investigation does not imply knowledge that statements would be presented to the grand jury. In Bruder's case, there was no evidence that he knew his false statements would be relayed to the grand jury, as he had only been subpoenaed for his memo book and had not been called to testify. The government’s evidence only established that Bruder lied to investigators, not that he intended to obstruct the grand jury. This lack of evidence regarding Bruder’s specific intent to obstruct led to the conclusion that the evidence was insufficient to support the conspiracy charge under 18 U.S.C. 1503. Consequently, the convictions were reversed, and the court directed entry of a judgment of acquittal due to the Double Jeopardy Clause. Additional challenges by the appellants were not addressed.
Counts 371 and 1503 are reversed due to insufficient evidence, resulting in a judgment of acquittal for all defendants on that count (Docket Nos. 00-1479, 00-1483, and 00-1515). Schwarz's convictions on Counts One and Four for civil rights violations and conspiracy are vacated and remanded for a new trial for two reasons: (1) his attorney faced an unwaivable actual conflict of interest that negatively impacted performance, and (2) the jury encountered extrinsic information during deliberations, which, in conjunction with other case factors, raises a reasonable probability that the jury's verdict would differ. The mandate for these decisions will be issued immediately. The document references various prior cases and decisions relevant to this case's background and notes that only facts pertinent to this appeal are recounted.
