In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-2528

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DESMOND CHRISTIAN,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 00 CR 87—Sarah Evans Barker, Judge.

____________

ARGUED FEBRUARY 21, 2003—DECIDED AUGUST 19, 2003

____________

Before CUDAHY, MANION and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Desmond Christian was a police

officer who attacked a suspect after the man hurled a hateful racial epithet at him. Two of Christian’s fellow officers

held the suspect while Christian punched him and kneed

him in the face. The other officers eventually pled guilty to

misdemeanor charges of deprivation of rights under color of

law in violation of 18 U.S.C. § 242. Christian was charged

with a felony under that same section and was subsequently convicted by a jury and sentenced to 33 months’ incarceration and 2 years of supervised release. Christian

challenges several evidentiary rulings and the sufficiency of

the evidence. He also urges us to find that the government

should have been estopped from charging him with a felony

when it charged his co-defendants with misdemeanors

under the same facts. We affirm.
2 No. 02-2528

I.

What began as a bar fight ended in criminal charges

against both the unruly bar patron and some of the police

officers who responded to the call. Desmond Christian

worked the night shift for the Kokomo, Indiana police department with fellow officers Jason Hahn and Craig Smith.

Shortly after midnight on October 20, 1998, the officers

were called to the scene of a fight at the Kokonuts Bar. By

the time the officers arrived, other bar patrons had already

removed an intoxicated customer named Kenneth Kail from

the bar to the parking lot. Kail was argumentative and uncooperative, and eventually Officers Smith and Hahn

tackled him and placed him in handcuffs. In order to fully

subdue him, Officer Smith sprayed Kail with mace. As another officer drove Kail to the Howard County Jail, Kail

began banging his head against the Plexiglas divider that

separated the front seat from the back seat in the police

cruiser. Officer Smith again sprayed Kail with mace in an

effort to subdue him. Once they arrived at the jail, the officers handed Kail over to jail personnel who took him to

the showers to wash off the mace.

When Kail finished his shower, jail personnel brought

him back to the processing area. Christian was in the processing area filling out paperwork. Hahn and Smith were

also present, along with several correctional officers.

At some point, Christian and Kail began to exchange words.

The taunting escalated until Kail called Christian (who is

African-American) a “nigger” as two correctional officers escorted Kail past Christian to a chair. As the two jail officers

stood watch next to their prisoner, Kail continued his verbal barrage but remained seated in the chair. Christian,

Hahn and Smith pushed the jailers aside and Hahn

sprayed mace at Kail. Then, as Hahn and Smith pinned

Kail to the chair, Christian forcefully kneed and punched

Kail in the face several times. Christian then asked Kail,

“Now you think I’m still a nigger now?” Tr. at 266. See also
No. 02-2528 3

Tr. at 410 (testimony that Christian asked Kail, “Am I still

a nigger?”).

After the beating, a correctional officer escorted Kail to a

holding cell. Kail requested medical attention and an ambulance technician examined him. Christian was present in

Kail’s cell during the examination. Kail told Christian to

leave his cell and Christian refused, commenting that he

was free to go anywhere in the jail he wanted. Later that

morning, a correctional officer photographed Kail’s bruised

and swollen face, including a cut on his lip.

Christian, Hahn and Smith failed to mention this assault

in their official police reports and denied the incident when

interviewed by the internal affairs unit of the police department. Hahn and Smith also lied to a grand jury investigating the incident, and Christian threatened another

officer about what would happen if Christian were indicted.

Christian was charged with felonious deprivation of civil

rights under color of law in violation of 18 U.S.C. § 242.

Hahn and Smith were charged with misdemeanor violations of section 242. Both pled guilty to these misdemeanor

charges and agreed to cooperate with the government in the

prosecution of Christian. Christian exercised his right to a

jury trial and was convicted after a three-day trial. The

district court sentenced Christian to 33 months’ imprisonment and two years of supervised release. He appeals.

II.

On appeal, Christian argues that because the government

entered into plea agreements with Smith and Hahn for misdemeanor violations of section 242, the government should

have been estopped from presenting evidence of bodily

injury at his trial. In the alternative, Christian maintains

that those plea agreements constitute an admission by the

government that Kail suffered no bodily injury. Christian
4 No. 02-2528

also challenges the district court’s exclusion of certain expert testimony concerning the extent of Kail’s injuries.

Finally, Christian contends there was insufficient evidence

presented to the jury to find that he acted under color of

law.

A.

Christian, Hahn and Smith were all convicted of violating

18 U.S.C. § 242, deprivation of rights under color of law. A

violation of section 242 may be charged as a misdemeanor

or a felony, depending on whether bodily injury results from

the acts committed in violation of section 242. Christian

argues that the government’s plea agreements with Smith

and Hahn for misdemeanor charges should estop the government from claiming that Kail suffered any bodily injury.

After all, Christian argues, the charges against all three

defendants arose from the same incident and Kail either

suffered bodily injury or did not. If the government agreed

to charge his co-defendants with misdemeanors, then the

government must be conceding that Kail suffered no bodily

injury. Therefore, Christian maintains, the government

must be judicially estopped from claiming bodily injury in

his case.

The doctrine of judicial estoppel is intended to protect the

integrity of the judicial process. New Hampshire v. Maine,

532 U.S. 742, 749 (2001). It is an equitable concept providing that a party who prevails on one ground in a lawsuit

may not in another lawsuit repudiate that ground. United

States v. Hook, 195 F.3d 299, 306 (7th Cir. 1999), cert. denied, 529 U.S. 1082 (2000). Judicial estoppel may apply

when (1) the later position is clearly inconsistent with the

earlier position; (2) the facts at issue are the same in both

cases; (3) the party to be estopped convinced the first court

to adopt its position; and (4) the party seeking to assert an

inconsistent position would derive an unfair advantage or
No. 02-2528 5

impose an unfair detriment on the opposing party if not

estopped. Maine, 532 U.S. at 750; Hook, 195 F.3d at 306.

Christian argues, and the government does not seem to disagree, that the second and third elements are easily met.

The prosecutions of Smith and Hahn arose out of the same

core set of facts that led to Christian’s indictment, establishing the second part of the test. The court accepted the

guilty pleas of Smith and Hahn to misdemeanor charges

under 18 U.S.C. § 242, and so the third element is met as

well. The parties do not address the fourth element but

focus their discussion instead on whether the government’s

position in Christian’s case was “clearly inconsistent” with

the position it took in the Smith and Hahn cases.

We turn first to the plea agreements themselves. In both

Smith’s and Hahn’s plea agreements, Christian’s co-defendants acknowledged that, as a result of the jail house attack, “Kail suffered a bloody lip and pain from the blows.”

R. 70, Ex. D at 10; R. 70, Ex. E at 9. Thus, both plea agreements acknowledged that Kail suffered bodily injury during the jailhouse altercation. There is therefore nothing

factually inconsistent between the plea agreements entered

into by Smith and Hahn and the government’s charge of a

felony against Christian. Christian maintains, however,

that the very fact that the government charged Smith and

Hahn with misdemeanors indicates that Kail suffered no

bodily injury. 

Christian’s argument seriously misconstrues the purpose

and operation of plea agreements. The plea agreements in

this case are typical of bargains the government strikes

with defendants every day. In exchange for a plea of guilty

to the charged offense (or, as occurred here, a lesser offense)

and a promise to cooperate with the government in the

prosecution of a co-defendant, the government often agrees

to dismiss or refrain from bringing additional charges. See

Fed. R. Crim. P. 11(c). When a court accepts a plea of

guilty, it must determine that there is a factual basis for
6 No. 02-2528

the plea. Fed. R. Crim. P. 11(b)(3). We take this to mean

that the court must find that the facts support the charge;

the facts may prove more than what is charged but not less.

See, e.g., United States v. Martin, 287 F.3d 609, 621 (7th

Cir. 2002), cert. denied, 123 S. Ct. 116 (2002) (noting the

court may accept a plea agreement that includes dismissal

of any charges so long as the court determines that the

remaining charges adequately reflect the seriousness of the

actual offense behavior and that accepting the agreement

will not undermine the statutory purposes of sentencing or

the sentencing guidelines). Under the facts recited in

Smith’s and Hahn’s plea agreements, the government

could have charged the defendants with either misdemeanor or felony charges of deprivation of rights. Because

Smith and Hahn saved the government the expense of a

trial and because they cooperated in the prosecution of

Christian, the government agreed to charge them with a

lesser offense, one of the many possibilities contemplated by

Rule 11(c). The court accepted those agreements presumably after determining that the charges adequately reflected the seriousness of their offense conduct. To accept

Christian’s position would obliterate the usefulness of plea

agreements. The government would lose its ability to bargain in cases involving more than one defendant because

it would be forced to charge each defendant identically. If it

offered to charge a lesser offense to a cooperating defendant, or to drop certain counts of an indictment, under

Christian’s logic the government would be estopped from

charging non-cooperating defendants with the full extent of

their conduct. See Rodriguez v. Peters, 63 F.3d 546, 563 (7th

Cir. 1995) (prosecutors are frequently forced to offer a plea

bargain in order to obtain testimony that will aid the

prosecution of the more culpable members of a conspiracy,

and an offer of a plea bargain to a lesser charge can be a

proper exercise of prosecutorial discretion). The government

would be left with nothing of value to offer cooperating

defendants. See also Standefer v. United States, 447 U.S.
No. 02-2528 7

10, 22-25 (1980) (listing the many reasons the application

of nonmutual collateral estoppel against the government in

criminal cases is disfavored). Because there is no factual

inconsistency between the plea agreements and the charges

against Christian, and for the other reasons stated above,

we reject Christian’s claim of estoppel. See Levinson v.

United States, 969 F.2d 260, 265 (7th Cir. 1992), cert.

denied, 506 U.S. 989 (1992) (government’s position not

inconsistent when government agreed not to seek fraud

penalties in prior case while claiming fraud in current case

because declining to seek penalty is not an admission that

no fraud occurred). Christian’s alternative argument, that

the plea agreements constitute an admission by the government that Kail suffered no bodily injury, must be rejected

for the very same reasons. See United States v. Delgado, 903

F.2d 1495, 1499 (11th Cir. 1990), cert. denied, 498 U.S. 1028

(1991) (plea agreements do not operate as admissions by the

government that a particular crime was not committed

because the government often agrees to accept a plea to a

lesser charge for many reasons, including to obtain the

cooperation of a defendant in the prosecution of co-defendants).

B.

We turn next to the district court’s exclusion of certain

expert testimony. Dr. John Pless served as an expert witness for the defense. The prosecution sought to exclude

Pless’s testimony and the district court held a hearing to

consider the prosecution’s objections. In an offer of proof,

Pless testified outside the presence of the jury that injuries

fall into three classifications: mild, moderate and severe.

Pless testified that Kail’s injuries were mild with some

moderate characteristics. The court found that, although

the fact of bodily injury was an element of the government’s

case, the degree of injury was not relevant to the charge
8 No. 02-2528

against Christian. The court therefore restricted Dr. Pless’s

testimony to the causation of Kail’s injuries rather than the

severity of the injuries. Christian’s theory of defense was

that Kail suffered the injuries during his arrest and when

he banged his own head against the Plexiglas shield in the

police cruiser. The court therefore allowed Dr. Pless to

testify as to whether the force used during the arrest, the

head-banging incident, the alleged beating, or some combination of those three incidents served as the cause of Kail’s

injuries. The court excluded only a discussion on the severity of the injuries. Christian argues that the court erred

in excluding testimony regarding the severity of the injuries

because he was charged with a specific intent crime.

He maintains that evidence on the severity of the injuries

was relevant to whether there was a deprivation of rights

in the first place. He points to two jury instructions in

support of this argument:

To determine whether a use of force is within the lawful

authority of a police officer, you may consider the extent of the injury suffered[.]

R. 93, Jury Instruction 9.

One factor which you may consider in your determination of whether the defendant had the requisite specific

intent to deprive the victim of a right is the nature and

degree of force used by the defendant.

R. 93, Jury Instruction 11. Because the extent of injury was

relevant to whether the use of force was lawful and also relevant to specific intent, Christian argues that the exclusion

of Dr. Pless’s testimony was reversible error. The government concedes that the degree of injury could be relevant in

some cases but not here because no amount of force was

necessary to subdue a person who was verbally abusive but

posed no physical threat. The government maintains that

Christian’s defense at trial was that he never threw a

punch and never applied his knee to Kail’s face.
No. 02-2528 9

We review the district court’s decision to limit expert

testimony on a specific issue for abuse of discretion. United

States v. Crotteau, 218 F.3d 826, 831 (7th Cir. 2000). The

district court concluded that the degree of severity of the

injuries was not at issue in the trial and that the fact of

injury was the only issue before the jury. The court allowed

Dr. Pless to testify whether the injuries were caused by the

force applied at arrest, the head-banging incident, the

alleged attack by Christian or some combination of those

events, but did not allow testimony regarding the severity

of the injuries. As the government admits, the degree of

severity may be relevant in some cases to the issue of

specific intent. The jury instructions themselves, to which

the government did not object, indicate that, in determining

whether a use of force is lawful, the jury may consider the

extent of the injuries. But we believe that any error in

excluding Dr. Pless’s testimony about the severity of Kail’s

injuries (and we are not concluding that the exclusion was

error) was harmless. This was not a complex medical issue

on which expert testimony was needed. Kail was tackled to

the ground during his arrest, slammed his own head on a

Plexiglas shield as he rode to the jail, and was allegedly

kneed and punched by Christian at the jail. His injuries

included a bloody lip and swelling. These are common injuries and the jury was provided with photographs of Kail

after the incident. Christian’s defense was that he did not

knee or punch Kail at all. The jury’s task was to determine

who was telling the truth about the jailhouse incident. Expert testimony about the degree of swelling would not assist

them in making that determination. The district court did

not abuse its discretion in excluding evidence regarding the

degree of injury suffered given that it allowed testimony

about the cause of the bruises and given that the jury

viewed photographs of the injuries.
10 No. 02-2528

C.

Finally, Christian maintains that the evidence was insufficient to prove that he acted under color of law when he

attacked Kail at the jail. He argues that acts of officers in

their personal pursuits and not undertaken in their official

duties are not under color of law. Christian was not involved in Kail’s arrest or transport to the jail. Once Kail

was released to jail officials, Christian contends, Kail was

not under Christian’s control as a police officer. Rather, he

encourages us to find that the incident was at worst a state

law battery. The government counters that Christian was

on duty and in uniform at the time of the attack. Moreover,

his contact with Kail resulted only because, as a police officer, he had access to the processing area of the jail.

Christian has an uphill battle in making out a sufficiency

of the evidence claim. United States v. Irorere, 228 F.3d 816,

822 (7th Cir. 2000). Because the government prevailed

at trial, we view the evidence in the light most favorable to

the government. Id.; United States v. Owens, 301 F.3d 521,

527 (7th Cir. 2002). Only when the record contains no

evidence from which the jury could find guilt beyond a

reasonable doubt may an appellate court overturn a verdict.

Irorere, 228 F.3d at 822. At the time of the attack, Christian was, as we noted, in uniform and on duty. He was in

the processing area of the jail, and had access to Kail

because he was at the jail on police business. When he

attacked Kail, however, he did so in response to Kail’s racial

epithet, and so was acting for personal reasons.

A number of cases have addressed the meaning of the

phrase “under color of law.” In 1941, the Supreme Court addressed the issue in the context of a conspiracy to prevent

the official ballot count in a primary election. United States

v. Classic, 313 U.S. 299 (1941). The court remarked:

The alleged acts of appellees were committed in the

course of their performance of duties under the Louisi-
No. 02-2528 11

ana statute requiring them to count the ballots, to record the result of the count, and to certify the result of

the election. Misuse of power, possessed by virtue of

state law and made possible only because the wrongdoer is clothed with the authority of state law, is action

taken “under color of” state law.

313 U.S. at 325-26. A few years later, the Court had occasion to revisit the issue in a context very analogous to the

instant case. Screws v. United States, 325 U.S. 91 (1945). In

that case, three police officers beat to death an arrestee,

claiming that he had reached for a gun (he was handcuffed

at the time) and used insulting language to the officers as

they removed him from the police car at the local court

house. Later evidence showed that one of the officers held

a grudge against the arrestee and had threatened to “get”

him. 325 U.S. at 92-93. In finding that the officers acted under color of law, the Court stated:

They were officers of the law who made the arrest. By

their own admissions they assaulted [the arrestee] in

order to protect themselves and to keep their prisoner

from escaping. It was their duty under Georgia law to

make the arrest effective. Hence, their conduct comes

within the statute.

325 U.S. at 107-08. Comparing the facts to Classic, the

Court noted that the cases were indistinguishable because,

in each, officers of the State were performing official duties,

and in each, the power they were authorized to exercise was

misused. 325 U.S. at 110. 

Our more recent cases have further clarified the limits of

the meaning of “under color of law.” We have stated that

a police officer may be acting under color of law even

though the officer is off-duty at the time of the deprivation

of rights. Latuszkin v. City of Chicago, 250 F.3d 502, 505

(7th Cir. 2001). “Deciding whether a police officer acted under color of state law should turn largely on the nature of
12 No. 02-2528

the specific acts the police officer performed, rather than on

merely whether he was actively assigned at the moment to

the performance of police duties.” Pickrel v. City of Springfield, Illinois, 45 F.3d 1115, 1118 (7th Cir. 1995). An officer

can be held to be acting under color of law when he or she

is in uniform and displaying a badge. Id. See also United

States v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991), cert.

denied, 504 U.S. 917 (1992) (deputy sheriff was acting

under color of law when he assaulted his wife’s former lover

out of personal jealousy; an air of official authority pervaded the incident because the officer used his service

revolver, summoned fellow officers to help him, and ran the

victim out of town in a squad car); United States v. Colbert,

172 F.3d 594, 596 (8th Cir. 1999) (officer acted under color

of law even though he was not on duty at the time he attacked a prisoner, his motivation was personal and his

anger at the prisoner arose from a personal cause; the

events took place in a restricted area of a jail that he

was able to access as a police officer, he had keys to the

cell and had authority to remove the victim from his cell).

In the context of these cases, we think it is clear that

Christian fails in his sufficiency of the evidence argument.

He was on duty and in uniform at the time of the attack. He

enlisted the aid of two other police officers. The attack took

place in the processing area of the jail and Christian later

told Kail that he (Christian) could go anywhere in the jail

that he wished. Although he was not in custody of Kail and

did not participate in his arrest, he pushed the jailers aside

to gain access to him. The jury had plenty of evidence from

which to conclude that Christian was acting under color of

law. The fact that he attacked Kail for personal reasons and

the fact that he was not the arresting officer do not render

the result otherwise.
No. 02-2528 13

III.

In sum, the government was not estopped from charging

Christian with a felony merely because it charged his codefendants with a misdemeanor. Nor did the misdemeanor

charges constitute an admission that Kail suffered no bodily

injury. The district court did not abuse its discretion in

declining to admit expert testimony regarding the extent of

Kail’s injuries. Finally, the evidence was sufficient for the

jury to conclude that Christian attacked Kail under color of

law. For all of these reasons, we affirm the judgment of the

district court. 

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-19-03