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United States v. Messerlian

argued: February 9, 1987.


On Appeal from the United States District Court for the District of New Jersey-Trenton, D.C. Criminal Nos. 85-00262-01 & 02.

Higginbotham and Stapleton, Circuit Judges, and Conaboy, District Judge.*fn*

Author: Higginbotham



This appeal arises from the convictions and sentences of New Jersey State Troopers Harry H. Messerlian and Henry F. Wolkowski, in connection with the death of arrestee Joseph P. Topolosky, while in police custody, following a traffic accident on the New Jersey Turnpike in July, 1982. For the reasons set forth below, we will affirm defendants-appellants' convictions and sentences on all counts.



On July 31, 1982, Joseph P. Topolosky was pronounced dead on arrival at the St. James Hospital in Newark, New Jersey, following his arrest for driving while intoxicated. Shortly thereafter, New Jersey state authorities initiated an investigation into the events that led to Topolosky's death. On November 24, 1982, a state grand jury in Union County, New Jersey, returned a one count indictment that charged Trooper Messerlian with second-degree manslaughter. See N.J. Stat. Ann. § 2C: 11-4(b)(1) (West 1982). Following the discovery of new evidence, however, the matter was submitted to a second state grand jury, which voted not to return an indictment against Messerlian. Consequently, the original manslaughter indictment was dismissed on April 28, 1983.

On July 25, 1985, following an investigation by the United States Department of Justice, a federal grand jury returned a multiple count indictment against Messerlian, charging him with violations of 18 U.S.C. § 242 (1982)*fn1 (deprivation of civil rights), 18 U.S.C. §§ 371 and 1503 (1982)*fn2 (conspiracy to obstruct justice) and 18 U.S.C. § 1623 (1982)*fn3 (false declarations). The same indictment charged appellant Henry F. Wolkowski with conduct in violation of 18 U.S.C. § 371 (conspiracy to obstruct justice) and 18 U.S.C. § 1623 (false declarations). Specifically, the indictment charged that Messerlian, acting under color of law, fatally struck Joseph P. Topolosky and thereby willfully deprived Topolosky of his constitutional right to liberty without due process of law in violation of 18 U.S.C. § 242. The indictment further charged that Messerlian and Wolkowski, together with State Troopers George J. Mangione and Brian Slattery,*fn4 conspired in violation of 18 U.S.C. § 1503 (1982) to cover up the alleged assault and thereby prevent state and federal investigation of the circumstances surrounding Topolosky's death.

Following a three month trial before the Honorable Anne E. Thompson,*fn5 the jury returned a unanimous verdict of guilty on all counts against Messerlian. Wolkowski was found guilty of conspiring to obstruct justice and not guilty of making false declarations. Subsequently, both appellants filed motions for judgments of acquittal, or alternatively, for new trials. After a hearing, the district court entered an order on April 29, 1986, denying all post-trial motions. On May 13, 1986, the district court sentenced Messerlian to concurrent terms of ten years imprisonment on Count 1, three years imprisonment on Count 2 and three years imprisonment on Count 3. Wolkowski was sentenced to one year imprisonment on his conviction for conspiring to obstruct justice. On May 12, 1986, the district court granted and denied motions by Wolkowski and Messerlian, respectively, for bail pending appeal. On June 16, 1986, this Court vacated the district court's order denying Messerlian bail pending appeal. United States v. Messerlian, 793 F.2d 94 (3d Cir. 1986). These appeals followed and were consolidated by order of this Court dated August 13, 1986.

Messerlian advances three principal arguments on appeal. First, Messerlian maintains that the district court failed to instruct the jury properly on the crucial element of specific intent under section 242. Second, Messerlian argues that Count 2 of the indictment is legally insufficient because it charges appellants with a conspiracy to obstruct federal proceedings that had not commenced at the time the alleged conspiracy was formed. Third, Messerlian contends that the government's failure to disclose exculpatory expert medical opinion requires reversal of his conviction, and that the district court erred in denying his motion for a new trial based on newly discovered evidence. This evidence consisted of the testimony of Dr. Marvin Aronson, Medical Examiner for the City of Philadelphia. See infra subsection C.

Appellant Wolkowski joins in Messerlian's second and third contentions. In addition, Wolkowski makes two related arguments regarding his conspiracy conviction. First, Wolkowski argues that the evidence at trial was insufficient to support a reasonable jury verdict that he conspired to obstruct justice. Alternatively, Wolkowski maintains that the district court erred in denying his motion for a new trial because the jury's verdict is against the weight of the evidence and constitutes a miscarriage of justice.*fn6

Due to the nature of appellants' arguments, we turn now to a detailed account of the facts as developed at trial.


1. The Constitutional Deprivation

On July 30, 1982, between 10:30 and 10:45 p.m., Joseph P. Topolosky parked his van -- occupied by himself and his two children, then ages four and five -- in the left land of the New Jersey Turnpike. A car driven by Nelson Velazquez collided with the rear of the van when the vehicle immediately in front of the car suddenly swerved to the right. Velazquez and the passengers in his car -- Luis Guzman, Abimael Fontanez and Gloria Ruiz -- got out of the car and went to the van to determine whether its occupants were hurt.

Upon approaching the van, Fontanez observed the driver resting his head on his arm. Fontanez roused Topolosky and asked him if he was all right. Topolosky raised his head and responded that he was fine. See Supplemental Appendix ("SA") at 13. Velazquez smelled alcohol on Topolosky and believed him to be drunk. Id. 232, 260. Velazquez, Fontanez and Guzman observed no cuts, bruises, bleeding or injuries of any kind on Topolosky's face.*fn7 Id. at 13, 232, 264-65. They therefore returned to their car to examine the damage and to wait for the police.

Within ten to twenty minutes, New Jersey State Police Troopers Messerlian and Kenneth McClelland arrived at the scene of the accident. The troopers talked initially with the four occupants of the Velazquez vehicle and determined that no one was seriously injured. The troopers then approached the van and attempted to wake Topolosky, who appeared to be asleep. After smelling alcohol on Topolosky's breath, Messerlian and McClelland pulled him out of the van, placed him under arrest, cuffed his hands behind his back, escorted him back to the cruiser and placed him in the rear seat. As Topolosky walked to the cruiser, Velazquez, Ruiz, and Fontanez observed that he had no facial injuries. See SA at 26, 76, 236.

After placing Topolosky into the cruiser, Trooper McClelland attended to Topolosky's children while Trooper Messerlian began setting flares to alert oncoming traffic to the accident. Thereafter, Topolosky, while lying handcuffed in the back seat of the cruiser, kicked out the left rear window. See SA at 28, 238, 267. In response to this disturbance, Messerlian, according to Velazquez and Fontanez, entered the cruiser and struck Topolosky three or four times on his face and neck with a flashlight. Id. at 28-29, 250-53; see also id. at 493, 495-96 (testimony of Gary McWhorter). Ruiz testified that she observed Messerlian strike Topolosky in the head but could not identify the object used. Id. at 80. She did see a flashlight in Messerlian's hand, however, immediately before he entered the cruiser. Id. at 78-79. Guzman testified that he saw Messerlian with "an object, black and long" in his hand, and that his hand was "going up and down" while he was in the back seat of the cruiser. Id. at 269-70. Also, Velazquez, Fontanez and Guzman each testified to hearing the Topolosky children cry out "[d]on't hit my father, don't hit my father." Id. at 33, 242, 271.

Following the episode in the cruiser, Messerlian returned to interview the accident victims. During this time, Velazquez, Fontanez and Ruiz each went back to the cruiser, where they saw Topolosky lying motionless in the back seat with blood running from his mouth and face. See SA at 34, 881, 241. After completing their interviews, the troopers radioed ahead to the state police barracks, informing the senior trooper that they were returning to the station with a drunk driver. Id. at 163. When Messerlian arrived at the state police barracks,*fn8 Topolosky's "face was puffy. There was a slight amount of blood on his mouth, and he appeared to be unconscious." Id. at 100 (testimony of Sergeant Nicholas Sheyka, acting supervisor, Newark state police barracks, July 30, 1982). Due to the condition of Topolosky, the supervising trooper, Sergeant Sheyka, instructed Messerlian to remove the handcuffs so that Topolosky could be taken to a hospital. Sergeant Sheyka proceeded upstairs to call an ambulance. Id. Thereafter, Topolosky was taken to St. James Hospital, where at 12:10 a.m., Dr. Lawrence Dalglish, the attending physical in the emergency room, pronounced him dead on arrival. Id. at 137.

At trial, the "central fact issue was whether Messerlian hit Topolosky with a flashlight and caused his death or whether Topolosky's death was caused by the car accident, or by Topolosky hitting his head on the car door or some object in the car." Defendant-Appellant Harry H. Messerlian's Brief on Appeal ("Messerlian's Brief on Appeal") at 7. In his examination report, Dr. Dalglish had written: "Pupils dilated, glazed cornea, left eye swollen shut. Blood oozing from mouth, and a marked DOA." SA at 141. At trial, Dr. Dalglish further described Topolosky's external injuries. Specifically, he stated that the left side of Topolosky's face was swollen, bruised and discolored; his lip was lacerated; his face and nostrils were covered with some blood; the left side of his neck was bruised and swollen; the left eye was surrounded by little hemorrhages; his pupils did not react to light; his blood pressure, pulse and respiration were zero; and his body was lifeless. See id. at 137-38, 140-41, 148. Based on these observations, Dr. Dalglish stated his opinion that the injuries to Topolosky's face and neck were consistent with having been beaten with a flashlight. Id. at 151-52. He further stated his opinion that those injuries were not self-inflicted. Id. at 147.

On July 31, 1982, Dr. Rudolf Platt, Assistant State Medical Examiner for the State of New Jersey, performed the initial autopsy on Topolosky. His examination revealed swelling, contusions, and lacerations to the left side of the neck and face accompanied by considerable hemorrhage beneath these injuries. See SA at 289-90, 295-99. An internal examination of the skull revealed a subarachnoid hematoma*fn9 at the base of the brain. Id. at 295-97, 299-304. Dr. Platt also noted that the left side of the complete upper denture worn by Topolosky was missing. Id. at 294. On August 4, 1982, a second autopsy was performed by Doctors Platt and Stefan Epstein. In addition to the earlier findings of Dr. Platt, the second autopsy revealed a fracture of the maxilla, a bone extending from the lower eyelid down to the gum, on the left side of Topolosky's face. See id. at 311-17.

On September 30, 1982, Dr. Charles Hirsh, a forensic neuro-pathologist, dissected and examined Topolosky's brain and similarly concluded that the cause of Topolosky's death was a traumatic subarachnoid hematoma. SA at 357-59. Both Drs. Hirsh and Platt indicated that, in their medical opinion, the manner of Topolosky's death was a homicide, the result of external, blunt blows or impacts to the head and neck. SA at 335, 361-63. In so concluding, each expressly ruled out the possibility that the fatal injuries were the result of natural causes, self-inflicted injury or the automobile collision.*fn10 See id. at 335-36, 362-65.

In addition to the eyewitness testimony and medical evidence, the government introduced evidence at trial to show that state trooper receive training regarding the impact that blows to particular parts of the body have, and to show that troopers are aware that blows to the neck and face area constitute deadly force. See SA at 169-72, 277-78, 281-82. Troopers are instructed to use such force only when a person cannot be controlled by a lesser degree of force or when that person is likely to endanger the life of, or cause serious bodily harm to, another. Id. at 280.

In his defense, Messerlian presented testimony by several state troopers that on three prior occasions -- in August 1968, March 1978 and September 1979 -- Topolosky had exhibited violent, self-destructive behavior while intoxicated and in police custody.*fn11 Messerlian also presented seven character witnesses from the New Jersey State Police who testified that, during his approximately ten year tenure as a state trooper, Messerlian had a reputation as a quiet, peaceful and non-violent individual. See SA at 396-402.

Messerlian's medical evidence consisted of testimony by two medical experts, Dr. Leslie Lukash, Chief Medical Examiner for Nassau County, New York, and Dr. Richard Lindenberg. Each of these witnesses testified that, although he agreed with the government's experts that Topolosky's death was caused by a subarachnoid hematoma, it was his opinion that the manner of Topolosky's death could not be conclusively determined. Dr. Lukash opined that Topolosky may have died naturally as the result of a ruptured aneurysm or accidentally as the result of the automobile collision. Dr. Lukash also indicated that some of Topolosky's injuries were consistent with his alleged thrashing about in the back seat of the cruiser. He could not, however, rule out the possibility that the fracture to Topolosky's face was the result of blows with a flashlight. See SA at 420-21. Dr. Lindenberg also opined that Topolosky died naturally as the result of a ruptured aneurysm or accidentally from the impact of the collision. Additionally, he noted that Topolosky might have died from hypertension due to his thrashing about in the cruiser. Finally, Dr. Lindenberg unequivocally maintained that Topolosky's fatal injuries could not have resulted from external blows with a flashlight.*fn12 See SA at 464-65, 474-75, 482.

2. The Conspiracy and Perjury Counts

Count 2 of the indictment charged Messerlian and Wolkowski, along with Troopers Slattery and Mangione, see supra note 4, with conspiracy to obstruct the due administration of justice. Specifically, the government argued that appellants conspired to prevent all law enforcement agencies from learning that Messerlian had assaulted Topolosky. It charged that the following overt acts occurred in furtherance of the conspiracy: (1) Messerlian, Wolkowski and others "agreed not to report the fact that Messerlian had assaulted Topolosky;" (2) Messerlian, Wolkowski and others "failed to provide routine information" to the hospital concerning the circumstances of Topolosky's death; (3) Wolkowski, Mangione and Slattery knowingly omitted accounts of the alleged assault from statement prepared during interviews with Velazquez, Guzman and Fontanez; (4) Messerlian and others agreed to fabricate a story attributing Topolosky's death to self-inflicted injury on a K-55 radar unit and a briefcase; (5) Messerlian testified falsely before the second Union County grand jury; (6) Wolkowski, Mangione and Slattery made false declarations before the federal grant jury; and (7) Messerlian falsely testified before the federal grand jury as to whether he had assaulted Topolosky.

At trial the government introduced evidence that, after the hospital notified the Newark state police barracks that Topolosky was dead, Sergeant Wolkowski was called at home almost immediately, and that he arrived at the barracks shortly thereafter to initiate and supervise an internal investigation into the circumstances of Topolosky's death. Additionally, the jury heard testimony that, on the night of Topolosky's death. Wolkowski was the chief investigative officer at the barracks for approximately four hours. SA at 112-14, 164, 181. During this time, although Wolkowski separately interviewed both Messerlian and McClelland, he made no notes of either interview and failed to file a report.*fn13 Moreover, Wolkowski failed to provide information to the hospital concerning the circumstances surrounding Topolosky's death. SA at 161-62. Based on this evidence, the government argued that, "once Wolkowski spoke to Messerlian and his partner, he did nothing [with respect to the investigation into Topolosky's death] . . . other than inspect the police cruiser and answer some telephone calls." Brief for the United States, Appeal No. 86-5345, at 8.

At approximately 4:40 a.m., over three house after Wolkowski's arrival at the barracks at 1:00 a.m., Lieutenant Herbert Orth, the acting unit supervisor of the Major Crimes Unit ("MCU"),*fn14 took over the investigation of Topolosky's death. After MCU detectives left the Newark barracks, however, Wolkowski was left in charge of interviewing three of the occupants of the Velazquez vehicle in order to ascertain how Topolosky died. Wolkowski personally interviewed Velazquez and briefed Troopers Mangione and Slattery on how to conduct the interviews of Guzman and Fontanez. See SA at 214-25. Velazquez, Guzman and Fontanez each testified that they told Wolkowski, Mangione and Slattery that they had witnessed one of the troopers assault Topolosky on the turnpike. None of the interview reports, however, mentioned the assault or made any reference to Topolosky's physical condition.*fn15 See Brief for United States, Appeal No. 86-5345, at 8-9. In addition, both Velazquez and Fontanez testified that, after they had reported the alleged assault during their interviews, they observed Wolkowski conferring with both Mangione and Slattery.*fn16

Finally, the government introduced evidence that, notwithstanding the testimony of the eyewitnesses, Wolkowski repeatedly denied ever receiving information about the alleged assault. In two interviews conducted by Lieutenant Orth of MCU, Wolkowski indicated that he had received no information from Velazquez concerning an assault on Topolosky, and that he had received no information from Mangione or Slattery that Guzman or Fontanez had made allegations of any wrongdoing. See SA at 199-200, 201-04, 214-25. In addition, the government introduced into evidence Wolkowski's testimony before the federal grand jury that, during his interview of Velazquez, Velazquez never mentioned anything about a beating and that Wolkowski never specifically asked Velazquez about the fatal injuries Topolosky sustained.*fn17

With respect to Messerlian's involvement in the alleged conspiracy to obstruct justice, the government argued that Messerlian attempted throughout the investigation to mislead the authorities by offering contradictory accounts of the events on the turnpike. Specifically, the government introduced evidence that Messerlian, in his initial interview with MCU detectives, reported that, while he was setting flares to alert oncoming traffic to the accident, he observed Topolosky banging his head against the windows in the cruiser. Messerlian also stated that he observed Topolosky kick out the left rear window of the cruiser. Messerlian stated that at this point -- after Topolosky kicked out the window -- he entered the front seat of the cruiser and grabbed Topolosky, who then fell asleep. See Sa at 205-06.

In his accident report filed within a week of the incident, Messerlian reasserted that he had observed Topolosky banging his head on the left rear window of the police cruiser. Messerlian noted, however, that the disturbance stopped once he reached the vehicle. There was no reference in this report to Messerlian's having entered the cruiser in response to the disturbance. SA at 87.

In November 1982, over three months after the incident, Messerlian was interviewed by Lieutenant Orth. During this interview, Messerlian, for the first time, indicated that on the night of Topolosky's death there was a K-55 radar unit and a briefcase in the back seat of the police cruiser. See SA at 216. Subsequently, when testifying before the second Union County grand jury, Messerlian indicated that he reentered the cruiser before the window was broken, observed Topolosky repeatedly banging his head against the briefcase and radar unit and attempted to prevent him from hurting himself. Id. at 88-96. Finally, Messerlian unequivocally stated before the federal grand jury that he never struck Topolosky either with his fists or with his flashlight. Id. at 349-51.

In addition to highlighting the inconsistencies in Messerlian's accounts of the events on the turnpike, the government offered evidence that overwhelmingly established that on the night of the alleged assault there was no briefcase or radar unit in Messerlian's cruiser. Nine witnesses, including the occupants of the Velazquez vehicle, the ambulance crew that transported Topolosky to the hospital and several state troopers involved in the subsequent investigation testified that they did not see a briefcase or a radar unit in the back seat of the cruiser on the night of the accident. See SA at 36 (testimony of Fontanez), 84 (testimony of Ruiz), 102 (testimony of Sergeant Sheyka), 126-27 (testimony of Miles Kelly, ambulance crew member), 135 (testimony of John Couto, ambulance crew member), 190 (federal grand jury testimony of Sergeant Wolkowski), 193 (testimony ...

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