Bad cop who is convicted of civil rights violation “distributed” drugs when he planted drugs on those he arrested and thus court did not err in applying the drug trafficking guideline.

United States v. Figueroa, No. 12-3575 (September 3, 2013). Defendant Figueroa was a Camden police officer who, along with other officers, planted drugs on and stole money from people he arrested. After trial, he was convicted of civil rights violations under 18 USC §§ 241 & 242 and he was sentenced to 10 years. Third Circuit affirmed both conviction and sentence.

District court did not err in using the drug trafficking guideline to calculate the range. USSG § 2H1.1 applies to civil rights violations. Under § 2H1.1(a), the base offense level is the highest of certain options including "the offense level from the offense guideline applicable to the underlying offense." Here, defendant’s actions of planting drugs on individuals fit the meaning of "distribute" under 21 U.S.C. § 841(a) – transfer of a controlled substance from one person or place to another (statute carves out exception for cops lawfully engaged in law enforcement – but that exception doesn’t apply here). Because defendant committed the distribution of drugs in committing the civil rights violations, USSG § 2D1.1 applied. Also, the ten-year sentence, which was within the final guideline range, was substantively reasonable.

Third Circuit also affirmed a series of evidentiary rulings made by the district court: (1) Co-defendant’s out of court statement criticizing the way defendant wrote police reports was admissible as a co-conspirator statement in furtherance of conspiracy because co-defendant was commenting on defendant’s inability to write police reports in a way that would keep them safe from trouble. (2) Police reports offered by defendant were properly excluded as cumulative under FRE 403 because their proffered probative value, that they were false, had already been admitted by the witness. (3) Police officer’s testimony that the constitution required him to get consent forms signed prior to a search did not constitute improper expert testimony from a lay fact witness on an issue of constitutional law – there was no contemporaneous objection from defense and the officer was just testifying about police procedure.

District court’s jury instruction on the specific intent requirement of 18 USC § 242 was proper. Elements are: (1) defendant "acted under the color of law;" (2) deprived a person of civil rights; and (3) "acted knowingly, intentionally, and willfully." District court said that requisite intent is met if defendant intended to deprive someone of a legally recognized federal civil right OR acted "with reckless disregard of a constitutional requirement which has been made specific and definite." District court did not act improperly in rejecting the defense’s requested instruction that the government proves "that the defendant’s aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution." District court’s instruction was a proper statement of the law.