HARRY H. MESSERLIAN AND HENRY F. WOLKOWSKI, PETITIONERS V. UNITED
STATES OF AMERICA

   No. 87-1191

   In The Supreme Court Of The United States

   October Term, 1987

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Third Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Questions presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-96a) is reported
at 832 F.2d 778.  The opinion of the district court (Pet. App.
97a-206a) is reported at 633 F. Supp. 1493.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 5,
1987.  Petitions for rehearing were denied on December 4, 1987 (Pet.
App. 207a, 209a).  The petition for a writ of certiorari was filed on
January 14, 1988.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the district court properly instructed the jury on the
specific intent element of 18 U.S.C. 242.

   2. Whether an oral opinion of a government medical expert that was
not disclosed to petitioner until after trial constituted either
exculpatory or newly-discovered evidence that entitled petitioner to a
new trial.

   3. Whether there was sufficient evidence to support the jury's
verdict that petitioners had conspired to obstruct justice by agreeing
to obstruct foreseeable federal grand jury proceedings.

                               STATEMENT

   Following a three-month jury trial in the United States District
Court for the District of New Jersey, petitioner Messerlian was
convicted of depriving another of his civil rights, in violation of 18
U.S.C. 242;  conspiring to obstruct justice, in violation of 18 U.S.C.
371;  and making false declarations before a federal grand jury, in
violation of 18 U.S.C. 1623.  Petitioner Wolkowski was convicted of
conspiracy to obstruct justice, in violation of 18 U.S.C. 371.  /1/
Petitioner Messerlian was sentenced to concurrent terms of ten years'
imprisonment on the civil right count, three years' imprisonment on
the obstruction of justice count, and three years' imprisonment on the
false declarations count.  Wolkowski was sentenced to one year's
imprisonment.  Pet. App. 8a-9a.

   1. This case arose from the death of an arrestee, Joseph Topolosky,
while he was in police custody.  The evidence at trial showed that on
the evening of July 30, 1982, Topolosky parked his van in the left
lane of the New Jersey Turnpike (Pet. App. 12a).  A car carrying four
persons collided with the rear of the van (ibid.).  Three occupants of
the car immediately went to the van and determined that Topolosky and
his two children were not hurt (if. at 12a-13a).

   Shortly thereafter, petitioner Messerlian, a New Jersey State
Trooper, arrived with another trooper at the scene of the accident
(Pet. App. 13a).  They approached the van and after awakening
Topolosky and smelling alcohol on his breath pulled him from the van,
cuffed his hands behind his back and escorted him to the police
cruiser (id. at 13a-14a).  While he was lying handcuffed alone in the
back seat of the cruiser, Topolosky kicked out the car's left rear
window (id. at 14a-15a).  Messerlian responded by entering the cruiser
and, according to witnesses who were only a few feet away, striking
Topolosky three or four times on his face and neck with a heavy
flashlight (id. at 15a).  Afterwards, Topolosky lay motionless with
blood running from his mouth and face (id. at 16a).

   Several minutes later, Messerlian drove Topolosky back to the
station.  After seeing Topolosky's condition, a senior trooper called
for an ambulance (Pet. App. 16a-17a).  The victim was taken to the
hospital, where he was pronounced dead on arrival (id. at 17a-18a).

   Petitioner Wolkowski was the chief investigative officer at the
police barracks at the time of the incident (Pet. App. 29a).
Wolkowski interviewed Messerlian within minutes of Messerlian's
arrival at the station, but Wolkowski made no wirtten record of the
conversation (ibid.).  In addition, despite repeated requests he
refused to provide the hospital or the victim's family with any
information about how Topolosky sustained his fatal injuries (ibid.).
The next day Wolkowski supervised the taking of statements from
eyewitnesses to the beating (id. at 30a-31a).  Although each of the
witnesses described Messerlian's beating of Topolosky, none of the
interview reports mentioned the assault or the victim's physical
condition (id. at 31a-32a).  After the interviews, Wolokowski
repeatedly told authorities that he had received no information about
a beating, and he testified before a federal grand jury that his
interview report reflected all the information that he had obtained
(id. at 33a).

   Messerlian gave investigators contradictory accounts of the events
on the turnpike (Pet. App. 35a-36a).  Messerlian alternatively claimed
that he never entered the cruiser, that he entered the cruiser only
after the window was broken, and that he entered the cruiser before
the window was broken when he saw Topolosky repeatedly banging his
head against a briefcase and a radar unit that were located in the
back seat (id. at 36a-37a).  At trial, the government established that
there was no briefcase or radar unit in Messerlian's police car that
night (id. at 38a).  Messerlian also testigied before a federal grand
jury that he had not struck Topolosky (ibid.).

   The attending physician in the emergency room, the medical examiner
who performed the autopsy on the victim, and a forensic
neuropathologist who examined the victim all testified for the
government at trial.  All three testified that Topolosky's death was a
homicide that resulted from external blunt blows or impacts to the
head and neck.  They specifically ruled out the possibility that the
fatality was due to natural causes, self-inflicted injuries, or the
automobile accident.  Pet. App. 18a-22a.

   Petitioner Messerlian presented two medical experts who testified
that Topolosky's death could have resulted from other causes, such as
an aneurysm, the automobile accident, or self-inflicted blows that
might have occurred if the victim had thrashed about in the back seat
of the cruiser.  One of the experts unequivocally stated that the
fatal injuries could not have resulted from external blows from a
flashlight, but the other stated that he could not rule out the
possibility that those blows had fractured Topolosky's face.  Pet.
App. 24a-26a.

   2. Following the jury's verdicts, petitioners filed motions for a
new trial alleging, inter alia, that the government had failed to
disclose the oral opinion of a medical expert who would have testified
that Topolosky's fatal injuries were the result of the automobile
accident.  After holding a hearing at which the expert testified, the
district court found that the government had not withheld any
exculpatory information.  The court found that the medical expert was
not a credible witness and that he had lied under oath and had changed
his opinion of the cause of the fatal injuries.  Contrary to the
expert's testimony, the court found that he had not told the
government prior to trial that Topolosky's death had been caused by
the automobile accident;  therefore, the court concluded, the
government had not withheld any information that should have been
disclosed under the principles of Brady v. Maryland, 373 U.S. 83
(1963).  The court further found that the medical expert's current
testimony regarding the cause of death was cumulative and would not
have swayed the jury because both of the defense experts who testified
at the trial had already stated that the victim could have sustained
his fatal injuries in the automobile accident.  Pet. App. 102a-103a,
131 a-146a, 160a-178a.

   3. On appeal, the court of appeals affirmed petitioners'
convictions (Pet. App. 1a-96a).  The court of appeals rejected (id. at
51a-59a) Messerlian's contention that the district court's
instructions permitted the jury to convict merely upon a finding that
he used excessive force or that he intended to stike the victim.
According to the court (id. at 56a), the instructions as a whole
"comport(ed) with the legal standard set forth in Screws (v. United
States, 325 U.S. 91 (1945))." The court further held (Pet. App.
60a-61a) that the district court correctly refused to instruct the
jury that specific intent to inflict summary punishment is an element
of the offense.

   The court of appeals also rejected (Pet. App. 67a, 69a)
petitioners' claim that the government failed to charge and to prove
that petitioners intended to obstruct federal proceedings.  The The
court noted (id. at 70a n. 22) that the indictment charged and the
government proved that petitioners "sought to 'prevent * * * law
enforcement authorities of New Jersey and the United States,' from
learning of the assault on Topolosky," and that the government
properly relied on "overt acts designed to obstruct * * * both state
and federal proceedings."

   Finally, the court of appeals affirmed (Pet. App. 76a-84a) the
district court's denial of petitioners' motion for a new trial based
on the alleged failure of the government to disclose an oral opinion
of a medical expert witness.  The court of appeals concluded (id. at
79a, 81a-82a, 84a) that the district court's findings -- that the
medical expert lied under oath and provided an opinion that was either
"cumulative or incredible" -- were "amply supported by the record."
The court further condluded (id. at 83a-84a) that it did not need to
determine whether Fed. R. Crim. P. 16(a)(1)(D) required disclosure of
the expert's oral opinion because, in light of the cumulative and
incredible nature of the testimony, the failure to disclose that
opinion could not have prejudiced petitioners' substantial rights.
Hence, in the court's view petitioners would not have been entitled to
relief on that ground in any event.

                               ARGUMENT

   1. Contrary to petitioner Messerlian's contention (Pet. 14-22), the
district court's instructions did not permit the jury to convict him
merely upon a showing that he used excessive force.  As the court of
appeals found (Pet. App. 56a-57a), "(t)he district court carefully
defined for the jury the term 'willfulness' as requiring proof of an
act 'done voluntarily and intentionally, and with the specific intent
to do something (that) the law forbids.' * * * (T)he (instructions)
did not permit the jurors to convict Messerlian solely on the basis of
a conscious assault." They allowed the jury to convict "only if (it)
found that Messerlian deprived Topolosky of a constitutional right and
that Messerlian knew what he was doing was a violation of the law"
(id. at 58a).

   The court of appeals likewise correctly rejected petitioners'
related contention (Pet. 18-19) that the district court erred in
refusing to instruct the jury that Messerlian must have specifically
intended to inflict summary punishment in order to violate 18 U.S.C.
242.  As described in Screws v. United States, 325 U.S. 91, 104 (1945)
(plurality opinion), the only "specific intent required (by Section
242) is an intent to deprive a person of a right which has been made
specific either by the express terms of the Constitution or (the) laws
of the United States or by decisions interpreting them." The scope of
the federal statute is not limited to the right to be free from
summary punishment.  It is well settled that a law enforcement
officer's intentional use of unreasonable, unwarranted, or excessive
force, in violation of a victim's Fourteenth Amendment due process
rights, can supply the basis for a conviction under 18 U.S.C. 242.
See, e.g., United States v. McQueeney, 674 F.2d 109, 113-114 (1st Cir.
1982);  United States v. Stokes, 506 F.2d 771, 775 (5th Cir. 1975);
United States v. Currie, 609 F. 2d 1193 (6th Cir. 1979), cert. denied,
445 U.S. 928 (1980);  United States v. Harrison, 671 F. 2d 1159, 1162
(8th Cir.);  cert. denied, 459 U.S. 847 (1982);  United States v.
Golden, 671 F.2d 369, 370 (10th Cir.), cert. denied, 456 U.S. 919
(1982);  see also United States v. Dise, 763 F.2d 586, 590-592 (3d
Cir.), cert. denied, 474 U.S. 982 (1985);  United States v. Calhoun,
726 F.2d 162 (4th Cir. 1984).  /2/

   Finally, Messerlian claims (Pet. 17) that he could not have acted
with the requisite specific intent because he was intending to subdue
the victim in furtherance of a legitimate law enforcement purpose.
Messerlian's contention wrongly assumes, however, that an intent to
subdue is exclusive of an intent to use excessive force.  That
Messerlian was entitled and intended to subdue the victim does not
mean that he necessarily lacked the intent to deprive the victim of
his constitutional right to be free from excessive force by beating
him in the head and neck with a flashlight.

   2. Petitioners content (Pet. 22-28) that the court of appeals erred
in affirming the district court's denial of a new trial motion that
was based on the testimony of a medical expert, Dr. Aronson, who
purportedly would have testified that Topolosky sustained his fatal
injuries in the automobile accident.  As the court of appeals found
(Pet. App. 81a), however, "the district court's findings of fact with
regard to the credibility and reliability of Dr. Aronson's testimony
are not clearly erroneous," but instead are "amply supported by the
record" (id. at 82a).

   Following a hearing at which Dr. Aronson testified, the district
court concluded (Pet. App. 168a) that his testimony was "cumulative"
because other medical experts had already presented "detailed
testimony regarding the possibility that Topolosky could have suffered
serious injuries to this (sic) head and/or neck as a result of the
motor vehicle accident.  There were, in fact, several incourt
demonstrations regarding the possible mechanisms of such injuries"
(id. at 171a-172a).  The district court also concluded that Dr.
Aronson's testimony, even if not cumulative, was not likely to produce
an acquittal because it was inconsistent with the physical evidence in
the case, was "little more than an educated guess" (id. at 173a;  see
also id. at 166a-168a, 174a-177a), and it would have been undercut by
rigorous cross-examination.  Further review of these findings of fact,
upheld by the court of appeals, is not warranted.  See Berenyi v.
District Director, 385 U.S. 630, 635-636 (1967).

   There is likewise no merit to petitioners' claim (Pet. 26-28)
raised for the first time in the court of appeals (Pet. App. 76a-77a),
that they should have been granted a new trial on the ground that the
government's failure to disclose the oral opinion of the medical
expert violated Fed. R. Crim. P. 16.  As the court of appeals
concluded (Pet. App. 83a-84a), failure to disclose the expert's
opinion could not have "prejudice(d) (the) substantial rights of
(petitioners)" because it was either "cumulative or incredible." See
United States v. Young, 470 U.S. 1, 17 n. 14 (1985).  Moreover,
although the court of appeals did not reach the question, it correctly
noted that "(t)he two (c)ourts of appeals that have addressed this
issue have concluded that Rule 16(a)(1)(D) only requires disclosure of
written reports" (Pet. App. 83a n.24).  See United States v. Shue, 766
F.2d 1122, 1135 (7th Cir. 1985);  United States v. Glaze, 643 F.2d
549, 552 (8th Cir. 1981).

   3. Finally, petitioners contend (Pet. 28-31) that the court of
appeals should not have relied on its own prior decision in United
States v. Perlstein, 126 F.2d 789 (3rd Cir.), cert. denied, 316 U.S.
678 (1942), to uphold their convictions for conspiracy to obstruct
justice.  Petitioners maintain that Perlstein, in which the defendants
were convicted of conspiracy to obstruct justice in anticipation of
federal proceedings, is inapplicable because the alleged conspiracy in
this case was directed at a state investigation, not a federal
judicial proceeding.  But as the court of appeals found (Pet. App.
66a-75a), in both this case and Perlstein the indictments charged and
the evidence demonstrated that the conspiracies were directed at
impeding all investigations by any law enforcement agency, whether
associated with the State of New Jersey or the United States.
Moreover, in this case, as in Perlstein, the conspiracy continued
through the period that the federal investigation was pending.  In
fact, two of the overt acts charged in the conspiracy count involved
false testimony by the two petitioners and others before the federal
grand jury that was investigating this case (see id. at 28a).  Thus,
contrary to petitioners' contention, the conspiracy in the instant
case was aimed at both federal and state proceedings, thereby making
this case factually indistinguishable from Perlstein.  In any event,
the alleged intracircuit conflict upon which petitioners rely does not
merit this Court's review.  See Wisniewski v. United States, 353 U.S.
901 (1957).

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WM. BRADFORD REYNOLDS

      Assistant Attorney General

   JESSICA DUNSAY SILVER

   LISA J. STARK

      Attorneys

   MARCH 1988

   /1/ Petitioner Wolkowski was found not guilty of the false
declarations charge against him (Pet. App. 8a).

   /2/ Contrary to petioner Messerlian's intimation (Pet. 21), the
Fourth Circuit's decision in Justice v. Dennis, 834 F.2d 380 (1987)
(en banc), does not conflict with the court of appeals' decision in
this case.  The court in Justice ruled that the district court had
properly instructed a jury that was considering a pretrial detainee's
clain under 42 U.S.C. 1983 that a police officer's behavior must
"shock the conscience" (834 F.2d at 380).  But the issue in Justice
was the proper standard for determining what constitutes "excessive
force";  that case did not concern the very different question
regarding the proper jury instructions on the issue of specific
intent.  Hence, there is no conflict between the decision in this case
and the Fourth Circuit's decision in Justice.