ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 83-00363-01)
Gibbons and Higginbotham, Circuit Judges and Sarokin, District Judge*fn*
Hastings J. Dise appeals from a judgment of sentence imposed following his conviction on seven counts of violating 18 U.S.C. § 242 (1982) by depriving inmates of Pennhurst State Hospital of their federally protected right to personal security. He contends that there is insufficient evidence to support the conviction on any count; that the court erred in instructing the jury; that the court erred in admitting evidence of other crimes; and that his motion to dismiss the indictment should have been granted. We affirm.
Sufficiency of the Evidence
Pennhurst is a Pennsylvania state institution for the severity mentally retarded. Dise worked there as an aide. During 1982, as a result of reports of abuse of inmates, Pennsylvania State Trooper Joanne D'Agostino became an undercover aide at the institution. As a result of her testimony before a grand jury in the Eastern District of Pennsylvania, several Pennhurst employees were indicted, including Dise and Cecil Conrad Snell. Snell pleaded guilty, and at Dise's trial testified for the government, as did Trooper D'Agostino. In evaluating Dies's contention that there is not sufficient evidence to support the jury verdict, we must view the testimony of D'Agostino and Snell in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942).
From the testimony the jury could have found that under Pennsylvania's regulations governing the care of Pennhurst inmates, aides were permitted to use force on those inmates only to the extent necessary to assure safety or to provide training, but that Dise frequently punched, kicked, kneed, or shoved inmates for no authorized reason. Even where use of force was occasioned by some departure from desirable order, the jury could have found that Dise employed force so out of proportion to the inmates' conduct as to belie an intent to merely to maintain discipline or promote safety. There was evidence, moreover, from which the jury could conclude that Dise's actions were motivated, not by safety or disciplinary concerns, but by an intent to humiliate and taunt inmates. The jury could have found that Dise knew his conduct was illegal; this conclusion might have been derived from the evidence that before punching a resident he looked in both directions, from the evidence that he received training as to proper responses to inmate behavior, and from evidence of his admissions about not having been caught to pushing the inmates around.
Dise contends that the foregoing facts, if found, do not support a conviction of violating 18 U.S.C. § 242. He does not dispute that when be battered inmates at Pennhurst he was acting under color of Pennsylvania law. Rather, he contends that he rights of those inmates were so uncertain prior to the decision in Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982), that as a matter of law he could not have willfully violated them. This contention lacks merit. That very case states plainly that the federally protected interests here involved, personal security and freedom from bodily restraint, have always been protected by the due process clause of the fourteenth amendment. Justice Powell wrote:
Respondent's first twoc laims involve liberty interests recognized by prior decisions of this Court, interests that involuntary commitment proceedings do not extinguish. The first is a claim to safe conditions. In the past, this Court has noted that the right to personal security constitutes a "historic liberty interest" protected substantively by the Due Process Clause. Ingraham v. Wright, 430 U.S. 651, 673, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977). And that right is not extinguished by lawful confinement, even for penal purposes. See Hutto v. Finney, 437 U.S. 678, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978). If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed -- who may not be punished at all -- in unsafe conditions.
Next, respondent claims a right to freedom from bodily restraint. In other context, the existence of such an interest is clear in the prior decisions of this Court. Indeed, "liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action." Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 18, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979) (POWELL, J., concurring in part and dissenting in part). This interest survives criminal conviction and incarceration. Similarly, it must also survive involuntary commitment.
457 U.S. at 315-16 (footnote omitted). From the evidence the jury certainly could have concluded that Dise, by intentionally battering Pennhurst inmates under color of state law with the knowledge that his acts were unlawful, deprived them of the federally protected liberty interests in personal security and freedom from bodily restraint. The United States is not required to demonstrate that Dise was "thinking in constitutional terms"; rather, a conviction under 18 U.S.C. § 242 may stand if Dise's "aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution." Screws v. United States, 325 U.S. 91, 106, 89 L. Ed. 1495, 65 S. Ct. 1031 (1945). Thus there is no merit in Dise's contention that the verdict is insufficiently supported by the evidence.
Dise objects to the court's instruction in two respects: that it did not adequately inform the jury as to rights protected by the Constitution, and that it did not adequately inform the jury on the willfulness required for a violation of section 242.
The Charge on Deprivation of a Constitutionally Protected Right
On the issue of deprivation of a constitutionally protected right, the court instructed:
Now, the indictment charges as to each count that the client was deprived of a right of liberty without due process of law.
The right to be deprived of liberty without due process of law includes the right to be free from unwarranted and unjustified intrusion by a state employee acting under color of law, as I have ...