United States v. Boone

110 F. Supp. 3d 909, 2015 U.S. Dist. LEXIS 80848, 2015 WL 3849192
CourtDistrict Court, S.D. Iowa
DecidedJune 22, 2015
DocketNo. 4:13-cr-139
StatusPublished

This text of 110 F. Supp. 3d 909 (United States v. Boone) is published on Counsel Stack Legal Research, covering District Court, S.D. Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Boone, 110 F. Supp. 3d 909, 2015 U.S. Dist. LEXIS 80848, 2015 WL 3849192 (S.D. Iowa 2015).

Opinion

SENTENCING MEMORANDUM OPINION AND ORDER

ROBERT W. PRATT, District Judge.

Before the Court is the matter of sentencing the Defendant, Colin Boone. This memorandum opinion and order supplements the findings made on the record at the sentencing hearing held June 22, 2015.

I. PROCEDURAL HISTORY

On December 17, 2013, a grand jury convened in the Southern District of Iowa issued an Indictment charging Defendant with “Unreasonable Use of Force,” in violation of 18 U.S.C. § 242. Clerk’s No. 2. On May 29, 2014, the grand jury issued a superseding indictment, which added a charge of “Obstruction,” in violation of 18 U.S.C. § 1519. Clerk’s No. 33.

Trial on the two counts of the superseding indictment commenced on October 27, 2014. Clerk’s No. 67. On November 1, 2014, the jury found Defendant “not guilty” of the Obstruction charge. Clerk’s No. 85. The jury was unable to reach a unanimous verdict on the Unreasonable Use of Force charge; accordingly, the [911]*911Court declared a mistrial. Clerk’s Nos. 84, 91. A retrial on the Unreasonable Use of Force charge commenced on March 9, 2015. Clerk’s No. 151. The jury found Defendant guilty of the offense on March 13, 2015.1 Clerk’s No. 166.

II. FACTS

The facts are taken from the trial record and the Pre-Sentence Investigation Report (“PSR”). Where indicated, the Court has either ruled on a disputed fact based on the trial record or determined that doing so is unnecessary to the task of sentencing. See Fed.R.Crim.P. 32(i)(3)(b); United States v. Wiggins, 104 F.3d 174, 178 (8th Cir.1997) (stating that a sentencing judge who also presided over a Defendant’s trial may “base its findings of fact on the trial record”). This case arises out of an incident that occurred in the early morning of February 19, 2013. PSR ¶ 7 (Clerk’s No. 182). The PSR describes the incident as follows. City of Des Moines Police Officers Trudy Simonson and Lindsey Kenkel responded to the scene of a one-vehicle accident involving a van. Id. They were soon joined by Officers Cody Willis and Tanner Klinge. Id. The driver of the van, later identified as Orville Hill, appeared to be unconscious, but as officers approached the vehicle, Hill awoke and unsuccessfully attempted to drive the van away. Id. The officers broke the windows of the van, pulled Hill out, and immediately took him to the ground. Id. Defendant, who was employed as a police officer with the City of Des Moines at the time, responded to dispatch calls about the accident. Id. ¶ 8. When Defendant arrived on the scene, Officers Willis, Kenkel, and Klinge were holding Hill on the ground, and Officer Simonson was standing nearby, ready to assist. Id. ¶ 8. Defendant ran over and delivered a straight kick to Hill’s mouth. Id.

Defendant objects to portions of PSR paragraphs 7 and 8 that describe what happened when he arrived on the scene. See Clerk’s No. 179 at 1-2. Defendant maintains that Hill was not under control at the time he arrived at the scene. Id. at 1. Defendant also maintains that he delivered a sweep kick rather than a straight kick. Id. At trial, Defendant’s testimony about the kick conflicted with the testimony of other officers on the scene.

Defendant testified as follows:

At that time when I was coming around, I saw [Hill’s] left hand out, kind of related back to my high school days, I want to say. I thought he was trying to push up with it. I know that from wrestling, you don’t want to give them a base to push up. So I decided to try to take [912]*912that arm and knock it out so he couldn’t use it to push up.... I used a side kick and tried to sweep that arm out from underneath him.... I was focused on— I could see his elbow to the shoulder area. That’s what I was trying to hit.... Hill was laying this way (indicated). His left arm would be right there (indicating), and I came up and I tried to sweep down around from underneath him.

Tr. 706 (Clerk’s No. 177 at 56). In contrast, Officer Willis was “[wjithin feet” of Hill’s face, and testified that he saw Defendant kick Hill “[sjtraight on.” Tr. 123 (Clerk’s No. 174 at 123). Officer Kenkel was by Hill’s shoulder when Defendant arrived on the scene and she testified: “I seen [sic] [Defendant] do a straight kick” that landed “[i]n [Hill’s] facial area.” Tr. 156 (Clerk’s No. 175 at 23). Officer Si-monson was on the ground with Hill and saw Defendant “running” towards her and deliver a “running straight kick to [Hill’s] face.” Tr. 427 (Clerk’s No. 176 at 20). The testimony of the other officers at the scene is consistent, and the Court finds the testimony .proves by a preponderance of the evidence that Defendant delivered a straight kick to Hill’s facial area, not a sweep kick to his shoulder area.

The officers also testified that they were working on getting Hill into handcuffs, and, at the time Defendant -arrived on the scene, no additional force was necessary besides the force they were already applying with their hands and body weight on top of Hill. For example, Officer Willis testified that he had Hill’s right arm under control, that Hill could not get up, and that the force needed to get Hill into handcuffs included “[t]he force he was currently exerting,” which included pressure from his knee and holding Hill’s right arm. Tr. 77-78 (Clerk’s No. 174 at 78). Officer Kenkel testified that Hill was “moving around” but that the force needed to get Hill into handcuffs was “hands on” force, including “physically holding him down.” Tr. 154-55 (Clerk’s No. 175 at 21-22). Officer Simon-son testified that after Hill was face down on the ground she was not worried that he could get up. Tr. 425 (Clerk’s No. 176 at 18). Officer Klinge testified that the level of force needed to control Hill was “[j]ust our hands.” Tr. 499-500 (Clerk’s No. 176 at 92-93). The Court finds the testimony of Willis, Kenkel, Simonson, and Klinge credible and thus finds by a preponderance of the evidence that no additional force was needed to gain control of Hill at the time Defendant arrived on the scene.

Finally, Defendant objects to the PSR statement that after Hill was in handcuffs and. face down on the ground, Defendant “put his foot on top of Hill’s head.” PSR ¶ 8. Defendant instead states that Hill was raising his head and Defendant “placed the toe of his foot and pushed [Hill’s] head back down.” The Court finds that this difference is immaterial for purposes of sentencing. Similarly, the Court finds it is unnecessary to resolve the dispute over whether Officer Kenkel was thrown back by the force of Defendant’s kick.

Defendant also disputes paragraph 9 of the PSR, which describes Hill’s injuries. Defendant disputes that officers “observed blood pour from Hill’s mouth and pool on the ground beneath his face.” See Clerk’s No. 179 at 2; PSR ¶ 9. The Court finds this dispute immaterial for purposes of sentencing. Defendant does not dispute that, as a result of the kick, two of Hill’s teeth were broken off at the gums and a third was knocked loose and had to be removed. PSR ¶ 9.

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Cite This Page — Counsel Stack

Bluebook (online)
110 F. Supp. 3d 909, 2015 U.S. Dist. LEXIS 80848, 2015 WL 3849192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-boone-iasd-2015.