Seitz, Chief Judge, and Aldisert and Gibbons, Circuit Judges. Seitz, Chief Judge (dissenting).
This appeal from a judgment of conviction entered on a non-jury finding of guilty under 18 U.S.C. § 242, prohibiting the wilful deprivation under color of law of the rights, privileges or immunities guaranteed to an inhabitant by the Constitution, poses the single question whether there was sufficient proof that the accused, a police officer, took it upon himself to administer punishment for an alleged traffic offense. If such was his purpose, his conduct deprived a Virgin Islands resident of due process of law, and thus was duly cognizable as a federal criminal offense under the deprivation statute.
The prosecution emanated from an incident which occurred on Centerline Road, St. Croix, when appellant, an offduty police officer, not in uniform and operating a private motor car in which a lady friend was a passenger, attempted to pass an automobile operated by Odo Harvey Chicot. It was appellant's contention that the Chicot vehicle accelerated as he attempted to overtake it, whereupon appellant undertook to apprehend Chicot for the purpose of giving him "a warning."
Testimony was conflicting as to what transpired thereafter, but the court found "that the weight of the evidence in this case supports the following facts:
Mr. Chicot left Frederiksted sometime around nine p. m. to go toward Christiansted. He left the middle of Frederiksted somewhere near St. Patrick's Church.
When he got to the Post Office he picked up a hitchhiker, Mr. St. Remaine, an acquaintance, and the two of them were seated and commenced going down the road from Frederiksted toward Christiansted.
When they approached Hannah's Rest corner they observed lights of a car coming up from behind and apparently intending to pass.
The occupants of that car that was going to pass were the defendant and Mrs. [Almira] Espinosa. They, too, were proceeding from Frederiksted toward Christiansted.
According to Mrs. Espinosa's testimony the vehicle driven by Mr. Chicot was going at a moderate rate of speed. The defendant testified that he was going slow. The testimony is that Mr. Delerme wanted to pass and he gave a passing signal. His testimony is that as soon as he tried to pass, the vehicle in front sped up, which prevented him from clearing the traffic lane of the vehicle coming from east to west and he had to backtrack and fall behind.
The Court finds that this may have angered the defendant because the evidence shows that immediately after this incident he determined to catch up with Mr. Chicot and, as he said, to warn him and tell him that he almost caused an accident. This was the beginning of a chase, and the Court finds that there was a chase from Hannah's Rest corner to approximately where Mr. Cintron's market is located. At that point the defendant was able to cut off Mr. Chicot, and with both vehicles stopped he got out to approach him.
He also testified that before he was able to cut him off he was holding his badge in his hand and attempting to yell across from car to car that he was an officer, that wanted him to stop. He also testified that as he approached Mr. Chicot's vehicle, at this area he was not able to approach very close but he was sure that Mr. Chicot saw his badge in his hand.
The Court does not express any opinion whether Mr. Chicot or his passenger saw the badge or not. I do not think it is relevant at this ...