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w . v i l l a no va . e du/thir dc ir c uit_2005/1486NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No. 03-3592
UNITED S TATES OF AMERI CA

v. CORNELL TYLER,

Appellant

On A ppeal from the Un ited States District Co urt for the Easte rn D istrict of P enns ylvania (D.C. Crimi nal Acti on No. 01-cr- 00429-3) District Judge: H onorab le William H . Yohn , Jr.
Submitte d Under Third Circ uit LAR 34.1(a)

February15, 2005
Bef ore: SL OV ITE R, A M BR O a nd A LD ISE RT , Circuit Judges (Fil ed March 3, 2005)

OPI NION
AM BR O, Circuit

Judge Corne ll Tyler was conv icted on M ay 1, 2002, by a jury of depriving a prisoner,2

Dante Hunter, of his ci vil rights in viol ation of 18 U.S.C. § 242. To convict Ty ler under 18 U .S.C. § 242 , the Gov ernmen t had to establish, am ong oth er things, that Tyler’s conduct deprived Hunter of a right protected by t

he Constit

ution or laws of the United Sta tes. Id. The juryfound that Tyle r had used exce ssive f orce on Hunter i n violat ion of Hu nter ’s rig ht to be f ree f rom cru el an d un usu al pu nish me nt. See U.S. Const. amend. VIII. We have j urisdi ction unde r 28 U.S.C. § 1291. Tyle r rai ses three iss ues on appeal : (1) whether the Distri ct Court e rred i n not granti ng him a new tri al; ( 2) whether t he District Court

erred i n not acqui tti ng him; and (3) w heth er th e D istrict Co urt e rred in n ot se ver ing his tr ial fr om that o f a c o-d efe nda nt. Bec ause we write e xclus ively for th e ben efit of the pa rties w ho ar e w ell acq uainte d w ith the fact s and procedur al post ure of thi s case, we recount onl y those matte rs rel evant t o the issu es b efo re u s. Tyle r’s first c laim i s that the verdi ct was agai nst the weight of the evidence and thus the tri al court

erred i n not granting him a new trial. “A district c ourt can order a new trial on th e gro und that the jury’s verd ict is con trary to the w eight o f the e viden ce on ly if it beli eves that there i s a serious danger that a miscarriage of justice has occurred–that is, that an innocent

person has be en convicted.” United Stat es v. Johns on , 302 F.3d 139, 150 (3d Cir. 2002) (quot ations omitt ed). Furthermore, we only reverse a di stri ct court ’s deni al of a motion for

a new trial based on a c laim that theverdict was against

the weight

of the evid enc e w hen the c our t abu sed its dis creti on. Wa ldorf v. S huta , 142 F.3d 601, 621 (3d1 We note that t he testimony of one uncorrobor ated witness is potenti ally suffici ent to co nvi ct. See United St ates v. Perez , 280 F.3 d 31 8, 34 4 (3 d C ir. 20 02)
.

3 Cir. 1998 ). Tyler arg ues th at the G over nm ent fa iled to p rove two of the elem ents re quired to establish a viola tion of 18 U .S.C. § 242 : that Tyler a cted w illfully to dep rive H unter o f his right to be fre e from crueland unusual puni shment, s pecifi call y exce ssive f orce; and that Tyler ’s ac ts res ulted in b odi ly injur y to H unt er. Id. First , Tyl er argues that t he Government fail ed to prove t hat he wil lfull y use d excessi ve force. He contends that “only three wit

ness, Hunter, [Li nda] Burnette, and [L illian ] W alke r, dire ctly im plica ted [ him ] in th e alle ged bea ting of H unt er.” 1 Tyle r further clai ms that t

his t esti mony was insuf fici ent to prove that

he willf ully used

exc essiv e fo rce. Correcti onal offi cer Linda Burnet te te sti fied as fol lows. She sa w Tyler and other officer s punching Hunter in cel l #17 and Hunter di d not take , to he r knowledge, any offe nsive action . She o rdered Tyler an d the o ther of ficers to stop b eating Hu nter an d to cuff him , but no on e did so. H unter fell on the f loor and T yler and the other off icers began kicki ng him. After running t o get hel p, she s aw Hunter cry ing and “bl oody fr om he ad to to e” as he w as es co rte d a w ay. Form er correctional of ficer Lillian W alker corrobo rated parts of B urnette’s
acco unt. Sh e testified that she saw Tyler an d oth er off icers b eat H unter a nd k ick him4

while he was on the floor i n a fetalposition. She a lso saw Burnette come to ce ll #17 and hea rd h er o rde r the off icers to sto p. Wh ile Hunter co uld not iden tify Tyler, he did co rroborate W alker and B urnette’s
acco unt o f the b eating . He s tated th at he f ell to the f loor an d that, th oug h he d id no t try to hit th e of fice rs, the y beg an k ickin g hi m. Furtherm ore, inmate S tacey Culbert testified that he h eard B urnette tell the officers to sto p an d sa w tw o to thre e of fice rs be ating Hu nter wh ile he wa s in a def ens ive p ositio n. In ad dition, in mate William Feath erer testif ied tha t he saw offic ers be at Hu nter in c ell #17 . He also saw off icers kick ing Hu nter wh ile he wa s on the f loo r. In light o f all this tes timon y, we ca nno t conc eive h ow the D istrict Co urt abu sed its disc retio n in dete rmin ing that T yler w illfu lly used exc essiv e fo rce. Tyler also argu es that th e G over nm ent fa iled to p rove that his a cts resu lted in bod ily injury to Hu nter. “B odily injury” is n ot def ined in 18 U .S.C. § 242 . Ho we ver, it is defined in identical terms in fo ur differen t provisions of Title 18: §§ 8 31(f)(5), 1365(g)(4) , 1515(a) (5), and 1864(d)( 2). These provisi ons define bodi ly injury t o include “a cu t, abrasio n, bru ise, . . . ; physical p ain; . . . imp airme nt of a fun ction o f a bo dily member, organ, or mentalfaculty; or any other i njuryto the body , no matter how temporary .” Id. In United States v. Myers , the Eleventh Circuit a dopted thi s defini tion of bodily i njury for 18 U.S.C. § 242. 972 F.2d 1566, 1572-73 (11th Cir. 1992). We also adop t this def inition o f bo dily injury for 1 8 U .S.C. § 242 . We cann ot dete rmine with5

certainty which officer s caused which of Hunter ’s inj uries . However, we can concl ude that the Distric t Cou rt did no t abus e its discr etion in determ ining th at Tyler’s k icks to Hu nter wh ile he wa s on the f loo r cau sed “a c ut, ab rasio n, br uise , . . . ; ph ysical p ain; . . . impairme nt of a fu nction of a bodily mem ber, organ, or m ental faculty; or any other injury to the body , no matter how temporary .” In this context, the D istrict Court hardly abused its discretion in denying Tyler a
new trial. Tyle r’s s econd clai m is that the Dist rict Court erred in not gr anting hi s motion for an acquittal. On a motion for a j udgment of acquit tal, a court must

uphold a guilty verdict if, i n viewing theevidence i n a light most favorabl e to thegovernment, it conc ludes t hat any ra tion al jur y cou ld h ave fou nd t he d efe nda nt g uilty. Jack son v . Virgin ia , 443 U. S. 307, 319 (1979) . Hence the s tandard f or granting an acqui ttalis hi gher than t he “weight of th e ev iden ce” stan dar d fo r gra ntin g a n ew trial. Cf. United State s v. Cothman , 286 F.3d 173, 175 ( 3d Cir. 2002) (we give part icular deferenc e to a deni al of a moti on for acquittal) . Because we find t hat theDistri ct Court di d not err in deny ing Tyl er a new trial, w e als o fin d th at it d id n ot er r in d enyin g T yler an acq uitta l. Tyle r’s t hird cl aim is t

hat theDistri ct Court e rred i n not granting him a seve rance from c o-defen dant G len Gu adalupe. F ederal Ru le of Crim inal Proced ure 14 states in p art that “ [i]fit app ears that a def end ant . . . is prejud iced by a jo ind er o f . . . de fen dan ts . . . , the court may . . . gr ant a seve rance . . . . ” Rule 14 “plac es the bur den of showing6

prejudi ce from the j oinder on t he defendant. ” United States v. De Peri , 778 F.2d 963, 983 (3d C ir. 1985 ). Eve n if a jo int trial is likely to cr eate a r isk of prejud ice to a defe ndan t, “less drastic measure s, suc h as li miti ng inst ructi ons, often will s uffice t o cure anyrisk of prejudi ce.” Zafiro v . Unite d States , 506 U .S. 534, 539 (1993). Th e de nial o f a m otio n fo r sev eran ce is rev iew ed f or a bus e of disc retio n. United States v. Hart , 273 F .3d 36 3, 369 (3d C ir. 2001 ). It is not su fficien t for a d efen dant to sho w th at se par ate tr ials w oul d ha ve g iven him a be tter c han ce o f ac qui ttal. United Stat es v. Reiche rter , 647 F.2d 397, 400 (3d Cir. 1981). I nstead, a defendant must show that t

he denial of the seve rance moti on caused “cl ear and subs tanti al prej udice re sulting in a manifestly unfair t

rial .” Id. Tyler argued in the District Cou rt that, if he was tried w ith Guad alupe, the jury would be infl uenced by evidence presented i n Guadalupe’s ca se that would otherwis e be inadm issable again st Tyler. O n app eal, Tyler c laims th at he w as pre judice d by tw o par ts of Guadalupe’s ca se. He points fi rst to Linda Burnette’s t esti mony that , aft er she t old Guadalupe that Tyle r and other

guards were i nvolved in t he beati ng, Guadalupe said that “theycan’t burn, they ’re my boys, they ’re my homies.” Tyle r clai ms that t his t esti mony, c ombined with the testimony t

hat he had been a

part of Guadal upe’s spec ial s earch t eam, prej udiced hi s case. This argument fails because there is no basis to assume that the evidence against Guadalupe would not have be en admissi ble agai nst Ty ler i n a separate tri al. As the2 Also , the fac t that Tyler h ad be en a p art of G uada lupe’s spec ial searc h team wo uld

have been admiss ible i n a separate tri al agai nst Ty ler to show that Guadalupe had a motive t o pressure Burnett e to li e about the beati ng. 7 Distri ct Court s tate d, “the testimony of Li eutenant Burnette [] would be admiss ible i n the tri al of [Ty ler] because i t does expl ain Lieutenant Burnet te’s change of her st atement and it would b e adm issible for credibility purposes in a trial against [T yler] . . . .” Burnette’s testim ony a bou t the b eatin g w as in con siste nt w ith sta tem ents she ma de a fter the in cide nt. In a se parate trial, Tyler w ould have no ch oice b ut to attem pt to im peac h B urne tte with her p rior inco nsisten t statem ents. T he G over nm ent w ould then h ave b een e ntitled to explai n these i nconsistencies i n order t o rest ore Burnette’s cr edibil ity by i ntroduci ng Burnette ’s te sti mony about what Guadalupe sai d. The Government’s theory was that Guadal upe pressured Burnette to li e about the beati ng in her s tate ments aft er the i ncident . Thus the Government would have been permitted to int

roduce Guad alupe’s stat ement that “they can’t burn, they’ re my boys, they’re m y hom ies” in o rder to show that G uada lupe im plied to Bu rnette th at she s hou ld not say an ything that w oul d m ake his m en “ bur n.” 2 Furth ermo re, this state men t wo uld n ot hav e bee n exc luded as he arsay bec ause it would not have been “off ered . . . to s how the trut h of the matter asse rted. ” Fed. R. Evid. 801. R ather the stateme nt wou ld have b een adm itted to show the effect o n the listener, Bu rnette. T hat is, the Go vern men t wo uld h ave a rgue d that w hen B urne tte hea rd this statement she would have bee n more like ly to li e about the beati ng in her s tate ments aft er8

the inc ident. In addition, t

he District Court

gave li miti ng inst

ructi ons to the jury . When Burnettetestifie d that Guadal upe told he r that the offi cers who beat Hunte r “can’t burn, th ey’ re m y bo ys, m y ho m ies ,” t he D ist ric t C ou rt in str uc ted th e ju ry: The evide nce th at you just h eard, a s to w hat M r. Gu adalu pe sa id, is admissi ble . . . a gainst

Mr. Guadalupe, but

not . . . anyof the other defendants . It ’s only

admissi ble as to him, si nce he sai d it, but not admissi ble as to anybodyelse. You must use it for that purpose and no oth er p urp ose . Also, during the Dis tri ct Court’ s finalcharge t o the jur y, the Court s tate d: [Y]ou must consi der each defendant separ atel y. It i s your duty to give separate and personalconsider ation to the case of each indi vidual defendant. When you do so, y ou should anal yze what the evi dence in the case shows with respect to that i ndividualdefendant, leavi ng out of y our consider ation e ntirelyany evi dence admitted solel y agai nst some other defendants. Thus, even i f Burnett e’s st atement would havebeen inadmis sibl e against Tyle r in a sepa rate trial, the Distric t Cou rt’s instruc tions h elped redu ce an y potentia l prejud ice to Tyler
. The second part

of Guadalupe’s ca se that Tyle r clai ms he was prejudi ced by i s that Captain Mary Padill a was allowed t o testifythat, after her revi ew of the use of for ce report s, she concluded i n her report that polici es and procedures were not fol lowed when Hunter was beate n. Tyl er argues that t his t esti mony would not havebeen admissible if he3 Tyler did not rais e the iss ue of Pad illa’s testim ony as a reaso n fo r seve rance in his

initial motion. 9 ha d b ee n t rie d s ep ar ate ly. 3 But Padill a testifie d that t he reason s he determined that polici es and procedures were not fol lowed was not because she conclude d that t he officer s used exces sive force on Hunter. Furthermore, the Dist rict Court ins tructed the j ury that i t shoul d not consi der as d eterm inati ve o f T yler’s g uilt o r inn oce nce any v iolat ion of th e us e of for ce p olicy. Padill a’s t esti mony only prejudi ced Tayl or sli ghtly , if at all , and thus did not cause “cl ear and substantialprejudi ce resul ting i n a manifestly unfair t rial .” Reicherter , 647 F.2d at 400. * * * * * Because the Dis tri ct Court di d not abuse i ts di scretion in denying Tyl er a new tri al
or a sever ance from Guadalupe’s tri al, and because the standard for granting an acqui ttal is hig her than the s tand ard for gra ntin g a n ew trial, w e af firm
.