Justia Federal District Court Opinions

Stacey Koon and Laurence Powell ("appellants") appeal their jury convictions for deprivation of rights under color of state law in violation of 18 U.S.C. Sec. 242. The United States appeals Koon's and Powell's sentences under the Sentencing Guidelines. We affirm the convictions but remand for resentencing.

BACKGROUND

The arrest of Rodney King occurred in the early morning of March 3, 1991 in Los Angeles. After drinking malt liquor with two friends, King left a suburb of Los Angeles and began driving. At this time he was intoxicated. Officers Melanie Singer and Tim Singer, both California Highway Patrol ("CHP") officers, observed King's vehicle speeding on the 210 Freeway. The officers began to pursue the vehicle and called on the radio for help. Several Los Angeles Police Department ("LAPD") units joined in the pursuit. Among these units was one manned by Powell and his trainee, codefendant Timothy Wind. The pursuit ended when King pulled his car over at an entrance to the Hansen Dam Recreation Area on Osborne St.

The officers ordered King and the other occupants of the vehicle to get out of the vehicle and assume a felony prone position (i.e. King was ordered to lie on his stomach with his arms behind his back, legs spread, heels turned toward the ground, and head turned away from the officers). King got out of the car but did not lie down. At this time Sergeant Koon arrived and took command. Police officers Ted Briseno and Roland Solano arrived soon after. The officers again ordered King to lie in a felony prone position.

King eventually got down on his hands and knees, but did not get into the felony prone position. Officers Powell, Wind, Briseno, and Solano attempted to place him in that position using a "team takedown" or "swarm." King became combative and the officers retreated. Koon then fired taser darts into King.

The events that occurred next were captured on videotape by George Holliday (the "Holliday videotape"). This videotape was the focus of much of the testimony at trial and is described in detail in the district court's sentencing opinion. See United States v. Koon, 833 F.Supp. 769, 774-80 (C.D.Cal.1993). The following description of the events tracks the relevant time frames on the Holliday videotape.

As the videotape begins, it shows that King got to his feet in an attempt to escape. Powell and Wind began to strike King with their batons. At trial it was disputed whether Powell's first blow hit King in the head. The district court concluded that Powell struck King's head accidentally. Id. at 777. King fell to the ground and attempted to rise. At 18 seconds, Briseno put his hand on Powell's baton, which Powell had raised as he stood above King.

From 18 to 30 seconds, King attempted to get up, and was struck with batons by Powell and Wind. From the 35th second to the 51st second, Powell struck King repeatedly. At approximately 43 seconds, one or more of Powell's baton blows fractured King's right leg. At 55 seconds, Powell struck King on the chest or upper abdomen. After this blow, King rolled onto his stomach and lay prone. At this point the officers suspended the use of force and stepped back for about ten seconds. Powell began to reach for his handcuffs. The district court found this movement to be evidence that Powell perceived King no longer to be a threat. Id.

At 1:05, Briseno moved forward and used his left foot to stomp King in the upper back or neck. King's body writhed in response. At 1:07 on the videotape, Powell and Wind began to strike King again with their batons. At approximately 1:29, King put his hands behind his neck and subsequently was handcuffed.

After King was handcuffed, Powell radioed for an ambulance. Powell sent two messages over the Mobile Digital Terminal to other officers that said "ooops" and "I havent [sic] beaten anyone this bad in a long time." Koon sent a message to the police station that said "U[nit] just had a big time use of force.... Tased and beat the suspect of CHP pursuit big time."

King was taken to Pacifica Hospital, where he was treated for a fractured right leg, multiple facial fractures, and multiple bruises and contusions. At the hospital, Powell learned that King worked at Dodger stadium, and said to him, "We played a little ball tonight, didn't we Rodney?" King said, "I don't know." Powell said, "You know, we played a little ball, we played a little hardball tonight, we hit quite a few home runs." King responded, "Yeah I guess so." Powell said, "Yes, we played a little ball and you lost and we won."

Koon, Powell, Wind, and Briseno were tried in state court in Simi Valley, California on charges of assault with a deadly weapon and excessive use of force by a police officer. At the trial, Koon, Wind, and Powell's defense was that the force used during the arrest of King was justified and was not excessive. In contrast, Briseno testified that excessive force was used but that he had tried to prevent its use. The four officers were acquitted on all charges except for one count against Powell on which the jury hung.

On August 4, 1992, a federal grand jury indicted the four officers. Count 1 of the federal indictment charged Powell, Wind and Briseno with willfully depriving King of his constitutional rights in violation of 18 U.S.C. Sec. 242 and with aiding and abetting each other in violation of 18 U.S.C. Sec. 2. Count 2 charged Koon with willfully permitting the other officers to unlawfully strike King and willfully failing to prevent the assault of King by officers in his presence, in violation of 18 U.S.C. Sec. 242.

The case was tried to a jury commencing February 25, 1993. The jury verdicts were handed down on April 17, 1993. Officers Briseno and Wind were acquitted; Officer Powell and Sergeant Koon were found guilty of violating Sec. 242. Koon and Powell were sentenced on August 4, 1993 to thirty months imprisonment and two years of supervised release. See Koon, 833 F.Supp. at 792. Appellants timely appealed their convictions and the government timely appealed the sentences. We have jurisdiction.

DISCUSSION

A. Admission of Briseno's State Trial Testimony

Before trial, the government moved to admit a videotape recording of codefendant Briseno's testimony in the state court proceeding. The videotape, which was ultimately played as part of the government's rebuttal case, was the subject of many motions in the district court, and continues to be the subject of various claims on appeal.

Briseno's testimony was highly damaging to Koon and Powell. He testified, among other things, (1) that Powell's first blow hit King in the face--which was inconsistent with Powell's position at trial; (2) that Powell delivered a second series of much more forceful blows to King "from the shoulder up"; (3) that Briseno couldn't see or understand what justified the other officers' behavior; (4) that Briseno grabbed Powell's baton and told him to "get the hell off" King; (5) that Briseno yelled to Koon "what the fuck [is] going on out here," but Koon did not respond; (6) that the officers continued to strike King with the baton when he was neither aggressive nor combative; and (7) that Briseno went to the police station after the incident intending to report the use of force.

At the state trial, Briseno was cross-examined by all three of his codefendants as well as the prosecutor, who spent part of his time trying to establish Briseno's own culpability. On both direct and cross-examination, Briseno stated repeatedly that he thought the other officers had acted wrongly. These statements of opinion were redacted from the videotape played at the federal trial.

On appeal, Koon and Powell contend that admission of the videotape violated their Confrontation Clause rights. They also argue that the videotape should not have been admitted as rebuttal evidence, and that it contained improper lay opinion evidence.

"The Confrontation Clause promotes accuracy in the criminal process by ensuring that the trier of fact has a satisfactory basis for evaluating the truth of out-of-court statements." Barker v. Morris, 761 F.2d 1396, 1399 (9th Cir.1985) (citations omitted). When a hearsay declarant is unavailable to testify at trial, his out-of-court statements may be admitted without violating the Confrontation Clause so long as those statements bear sufficient indicia of reliability. Bourjaily v. United States, 483 U.S. 171, 182-83, 107 S.Ct. 2775, 2782-83, 97 L.Ed.2d 144 (1987). "[N]o independent inquiry into reliability is required" under the Confrontation Clause, however, when the out-of-court statements "fall within a firmly rooted hearsay exception." Id. at 183, 107 S.Ct. at 2782. Since Rule 804(b)(1) is a firmly rooted exception to the hearsay rule, Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895) (discussing history of the exception); United States v. Kelly, 892 F.2d 255, 262 (3d Cir.1989) (collecting authorities), cert. denied, 497 U.S. 1006, 110 S.Ct. 3243, 111 L.Ed.2d 754 (1990), our analysis focuses on whether the district court erred under Rule 804(b)(1) in admitting Briseno's former testimony.¹

Under Rule 804(b)(1), testimony from another proceeding is not excluded by the hearsay rule if the declarant is unavailable,² and if "the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."

Appellants argue that the Briseno videotape should not have been admitted because at the state trial they lacked sufficient opportunity to cross-examine Briseno. Appellants point out that in the state proceeding they did not have the benefit of various enhancements to the Holliday videotape which were available at the federal trial.³

We reject appellants' argument. Appellants had a full and fair opportunity to cross-examine Briseno in the state trial. Indeed, they do not argue that the state court in any way interfered with their ability to carry out an effective cross-examination. They instead claim that the absence of the enhancements to the videotape at the state trial amounts to a lack of opportunity. We disagree. The failure of a defendant to discover potentially useful evidence at the time of the former proceeding does not constitute a lack of opportunity to cross-examine. See Thomas v. Cardwell, 626 F.2d 1375, 1386 n. 34 (9th Cir.1980), cert. denied, 449 U.S. 1089, 101 S.Ct. 881, 66 L.Ed.2d 816 (1981). In Thomas, the prosecution introduced, at defendant's second trial, the testimony of a witness from defendant's first trial who had become unavailable. Id. at 1384. By the time of the second trial, the defendant claimed to have discovered evidence that this witness was schizophrenic. Id. at 1386 n. 34. The Thomas court rejected the argument that the purported discovery of new evidence established defendant's lack of opportunity to cross-examine the witness at the first trial. After noting that there was no suggestion that the defendant's failure to discover the information was the prosecution's fault, the court explained that

often information will surface after a trial which, if known to a defense attorney, would have made the cross-examination of a witness more thorough or even more advantageous to the defendant. Nevertheless, that lack of information does not make the opportunity for cross-examination ineffective even though the cross-examination itself is less than optimal for the defendant.

Id.

Much the same applies here. Appellants did not lack the opportunity to cross-examine Briseno; they lacked only some of the tools which were later developed by the government or by appellants themselves, and which appellants argue would have allowed them to cross-examine Briseno to better effect. Appellants' failure to take full advantage of their opportunity to cross-examine in the first trial--by developing those tools earlier--cannot alter the fact that they had that opportunity. See United States v. McClellan, 868 F.2d 210, 215 (7th Cir.1989) ("the emphasis in [the Rule 804(b)(1) ] inquiry is upon the motive underlying the cross-examination rather than the actual exchange that took place"); United States v. Salim, 855 F.2d 944, 953-54 (2d Cir.1988) (under Rule 804(b)(1), defendant is entitled to " 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' ") (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985) (per curiam)) (emphasis in original).⁴

In addition to a full opportunity, Rule 804(b)(1) requires that appellants' motive in carrying out their state trial cross-examination of Briseno was similar to the motive they would have had in the later proceeding. We conclude easily that it was. The operative facts and legal issues in the state and federal trials were substantially similar, see United States v. Salerno, --- U.S. ----, ----, 112 S.Ct. 2503, 2509, 120 L.Ed.2d 255 (1992) (Blackmun, J., concurring) (" 'similar motive' does not mean 'identical motive' "), and appellants do not challenge the district court's finding to this effect. Appellants thus had every reason to develop Briseno's testimony in the state trial with an eye to undermining his credibility and casting into doubt his statements about their behavior. See United States v. Poland, 659 F.2d 884, 895-96 (9th Cir.1981) (holding that defendant's motive for cross-examination at suppression hearing was similar under Rule 804(b)(1) to his motive for cross-examination at trial).

Appellants maintain that their position is supported by People of the Territory of Guam v. Hayes, 1993 WL 469357 (D. Guam 1993), in which a three-judge panel held that the trial court erred in admitting former testimony because the defendant had not had the same motive to cross-examine the witness about certain facts in the first trial as he had in the second trial. However, the Hayes court made clear that this difference in motive occurred because "different issues arose at the second trial which [defendant] could not possibly have anticipated at the first trial." Id.at * 2.⁵

Here, by contrast, there is no suggestion that either the factual nature of the case against appellants or appellants' motive for cross-examining Briseno changed at all from the first to the second trial. All that changed was the technology that appellants might have used to enhanced the Holliday videotape as a basis for questions in the cross-examination. Because this change constitutes a deficiency in neither the opportunity to cross-examine nor the motive for doing so, appellants' argument under Rule 804(b)(1) must fail.

Appellants next contend that even if there was no Confrontation Clause violation, the district court erred in admitting the Briseno videotape as rebuttal evidence. As district courts have wide latitude in deciding what constitutes proper rebuttal evidence, Geders v. United States, 425 U.S. 80, 86, 96 S.Ct. 1330, 1334, 47 L.Ed.2d 592 (1976), we review such determinations for an abuse of discretion. Rent-A-Center v. Canyon Television & Appliance, 944 F.2d 597, 601 (9th Cir.1991).

Appellants first argue that Briseno's testimony did not rebut anything presented in their defenses. We disagree. Briseno's testimony rebutted Koon's statement that Powell's first blow struck King on the shoulder area rather than on the head, Koon's expert's testimony that the officers' use of force was justified because King continued to be combative and aggressive, and Powell's former police instructor's testimony that Powell had done nothing he had not been trained to do.

Appellants next argue that even if some portions of the videotape properly rebutted elements of their cases, the district court nonetheless erred in permitting the government to introduce as rebuttal both those parts of the videotape which in fact rebutted their evidence, and those parts which were offered solely against Briseno.⁶ No one suggests that appellants have standing to appeal any violation of Briseno's rights which such procedure might have worked. Appellants instead claim that their own rights were violated because playing the entire redacted videotape as rebuttal gave the government's case against them "undeserved weight and dramatic force." Reply Br. of Powell at 23.

We reject this claim. District courts have broad discretion in deciding the order in which evidence may be presented at trial. See Fed.R.Evid. 611(a) (trial courts "shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence"). Indeed, the Advisory Committee Notes to Rule 611(a) reveal that the rule was intended to avoid imposing on the district courts strict rules concerning the order in which evidence should be presented. Moreover, several courts have held that district courts have wide discretion to allow the government to introduce as part of its rebuttal case evidence which might have been presented in the government's case-in-chief. E.g., United States v. Tejada, 956 F.2d 1256, 1267 (2d Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 124, 121 L.Ed.2d 80 (1992); United States v. Braxton, 877 F.2d 556, 561 (7th Cir.1989).

Here, where it was unclear whether Briseno would testify at trial, and where playing the videotape during the government's case-in-chief could have been unnecessarily duplicative, the district court did not abuse its discretion in allowing the government to postpone playing the videotape until its rebuttal case. See Tejada, 956 F.2d at 1267 ("Any other rule would require attorneys to present evidence in advance to rebut every possible scenario that defendants might paint"). Moreover, appellants were allowed to put on surrebuttal. See United States v. Goodwin, 770 F.2d 631, 638 (7th Cir.1985) (defendant's ability to present a surrebuttal case helped defuse any prejudice which might have flowed from government's rebuttal).

Appellants have not shown how playing as rebuttal those portions of the videotape pertaining solely to Briseno unfairly prejudiced them. These portions represent only a small part of the entire tape. They reflect on Briseno's credibility as a witness and thus may have helped appellants by undermining the government's reliance on his incriminating statements about appellants. In any case, having the Briseno-related portions played along with the portions rebutting appellants' cases was simply a consequence of the joint trial. In United States v. Papia, 560 F.2d 827, 848-49 (7th Cir.1977), the Seventh Circuit held that evidence rebutting one defendant's case could also be introduced, on rebuttal, against a second defendant even if that defendant had, like Briseno, presented no evidence. All codefendants suffer what appellants claim to have suffered here: the accumulation of evidence of guilt which comes from being tried with other defendants. In an extreme case, this cumulative effect may indeed become so unfairly prejudicial that severance is warranted. But clearly this is not such a case. Cf. United States v. Baker, 10 F.3d 1374, 1386-89 (9th Cir.1993) (district court did not abuse its discretion in failing to sever trial lasting over 16 months and involving 15 defendants, 250 witnesses, and 30,000 pages of transcripts).⁷

Many statements in which Briseno expressed his opinion about his codefendants' wrongdoing were excised from the videotape before it was shown to the jury. Appellants contend, however, that various statements of opinion remained.

Many of the statements about which appellants complain are simply not opinions. Appellants argue that even Briseno's descriptions of the other officers' actions should not have been admitted. Appellants seem to suggest that these descriptions were akin to opinions insofar as they revealed that Briseno was testifying against his codefendants rather than on their behalf. Whomever they may have hurt or benefitted, however, the straightforward physical descriptions in question do not constitute opinions.

Appellants also contend that Briseno's statement that he went to the Foothills police station intending to report a use of force should not have been admitted, because he would not have taken this action unless he believed that the use of force had been wrong. We decline to adopt a rule barring testimony about actions which are motivated by opinions. Actions are usually motivated by opinions or beliefs, but testimony about the actions is clearly not for that reason inadmissible. Koon's testimony, for example, was filled with descriptions of actions he took because he had formed certain opinions about King's behavior.

Appellants argue that they were prejudiced when the jury learned of Briseno's statement that Powell was "out of control." This phrase was removed from the redacted version of Briseno's testimony presented to the jury. When Koon was recalled as a surrebuttal witness, however, the prosecutor on cross-examination twice referred to the fact that Briseno had said that Powell was out of control. Appellants contend that this interjection of Briseno's opinion was improper.⁸

The Federal Rules of Evidence allow lay opinion testimony so long as the opinion is "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Fed.R.Evid. 701; United States v. Juvenile Male, 864 F.2d 641, 647 (9th Cir.1988) (admitting, under Rule 701, witness's opinion as to defendant's intent); accord United States v. Simas, 937 F.2d 459, 464 (9th Cir.1991). Both requirements were met here. First, Briseno's opinions were rationally based on his first-hand observations. Second, the opinion that Powell was out of control was helpful in determining factual issues central to the case. Appellants are wrong that Briseno's statements are no more than conclusory assertions about ultimate issues. The ultimate issue in the case was not whether the defendants were out of control, but whether they willfully used unreasonable force. The fact that Powell may have been out of control could have helped the jury resolve that issue; at the same time, it certainly did not settle the issue in and of itself.⁹ Briseno's statement thus was not "testimony which merely tells [the jury] what result to reach." 3 Weinstein's Evidence p 701, at 701-25.¹⁰

In sum, we conclude that no error was committed in the admission of the Briseno videotape.

B. Fifth Amendment Protection Against Use of Compelled Statements

After they were warned that they could lose their jobs if they refused to make statements, Koon and Powell gave compelled statements to the LAPD Internal Affairs Division. Appellants contend that the introduction of codefendant Briseno's state trial testimony and the testimony of prosecution witness Mark Conta violated their Fifth Amendment rights because Briseno and Conta were exposed to appellants' compelled statements prior to testifying.

The Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. The Constitution thus requires that "the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth." Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694 (1966).

In accordance with this fundamental principle, the Supreme Court has recognized that the Fifth Amendment protection against coerced statements extends to public employees who must choose either to incriminate themselves or to forfeit their jobs during an administrative hearing. Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967). Thus, where police officers such as Koon and Powell invoke their Fifth Amendment rights and subsequently make a statement under threat of removal from office, the statement is compelled and the government is precluded from using either the statement or information derived from it as evidence in the federal trial. Id. at 497, 87 S.Ct. at 618; see also Kastigar v. United States, 406 U.S. 441, 460-61, 92 S.Ct. 1653, 1664-65, 32 L.Ed.2d 212 (1972).

Once a defendant has demonstrated that his statements were compelled, the government has the burden of proving in a "Kastigar hearing" by a preponderance of the evidence that the evidence it intends to introduce in a subsequent criminal proceeding is not tainted by exposure to the compelled statements. Kastigar, 406 U.S. at 461-62, 92 S.Ct. at 1665-66; United States v. Rogers, 722 F.2d 557, 560 (9th Cir.1983), cert. denied, 469 U.S. 835, 105 S.Ct. 129, 83 L.Ed.2d 70 (1984).

In this case, the parties disagree as to the precise type of showing that is required to establish that a witness who has been exposed to compelled testimony is not tainted by that exposure. Our circuit has twice considered this issue in the context of testimony that was compelled pursuant to federal immunity statutes. See 18 U.S.C. Sec. 6002. In both cases, we held that the government meets its Kastigar burden by showing that each matter as to which the witness will testify is derived from a source independent of the immunized testimony.¹¹

In United States v. Lipkis, 770 F.2d 1447 (9th Cir.1985), the defendant first made voluntary statements on three occasions to an FBI agent and subsequently made identical statements to the same agent under a grant of immunity. Id. at 1449. The FBI agent became the government's witness at trial and Lipkis argued that the agent's testimony should have been excluded because it was tainted by the agent's exposure to the compelled statements. We held that because the defendant's immunized statements were the same in every material respect as the prior, non-immunized statements, the government had met its burden of proving that all the evidence introduced at trial was derived from a legitimate source that was wholly independent of the immunized statements. Id. at 1449-51.

Similarly, in Rogers, a government witness had attended a proceeding in which the defendant testified under a grant of immunity. On appeal, we held that the witness's testimony was permitted because it was clear that it was based on information the witness learned on his own rather than on the immunized testimony. Rogers, 722 F.2d at 560.

The standard applied in our circuit is taken directly from the language of Kastigar, which provides:

Once a defendant demonstrates that he has testified, under a ... grant of immunity, to matters related [to the current prosecution], the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.

This burden of proof ... is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.

406 U.S. at 460, 92 S.Ct. at 1665 (internal citations omitted) (quoting in part Murphy v. Waterfront Comm'n, 378 U.S. 52, 79 n. 18, 84 S.Ct. 1594, 1609 n. 18, 12 L.Ed.2d 678 (1964)). Thus, under Kastigar and this circuit's precedent, the prosecution meets its Fifth Amendment burden of proving that compelled testimony is not used against a defendant when it produces a legitimate, wholly independent source for all matters as to which the witness will testify.

Appellants contend that we should reject the holding of Rogers and Lipkis and instead adopt the standard recently articulated by the District of Columbia Circuit in United States v. North ("North I"), 910 F.2d 843, modified, ("North II" ), 920 F.2d 940 (D.C.Cir.1990), cert. denied, 500 U.S. 941, 111 S.Ct. 2235, 114 L.Ed.2d 477 (1991), and United States v. Poindexter, 951 F.2d 369 (D.C.Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 656, 121 L.Ed.2d 583 (1992). These cases, in what is "the most expansive reading of the Fifth Amendment to date regarding the evidentiary use of immunized testimony," United States v. Helmsley, 941 F.2d 71, 82 (2d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1162, 117 L.Ed.2d 409 (1992), require the prosecution to make a two part showing to meet its Kastigar burden. First, as in our circuit, the prosecutor must prove that there is an independent source for all matters on which the witness testifies. Poindexter, 951 F.2d at 373. And second, the prosecutor must prove that any witness exposed to compelled statements has not shaped or altered her testimony in any way, either directly or indirectly, as a result of that exposure. Id.; North II, 920 F.2d at 942; North I, 910 F.2d at 860-63, 872-73.¹²

In asking us to apply North and Poindexter, appellants fail to acknowledge that those cases are not the law of this circuit. In fact, we have previously rejected contentions similar to appellants' that Kastigar requires a greater showing on behalf of the prosecution. In Lipkis, the prosecution witness had been exposed to both immunized testimony and to non-immunized testimony. In affirming the district court, we specifically rejected the defendant's contention that Kastigar required the prosecution to prove that the witness's testimony was based on only the non-immunized statements and not on the identical immunized statements, recognizing that such a showing was both impossible and unnecessary. Id. at 1451.

In sum, it is the law of our circuit that the prosecutor's Kastigar burden is met if the substance of the exposed witness's testimony is based on a legitimate source that is independent of the immunized testimony. Ensuring that the content of a witness's testimony is based on personal knowledge provides the required Fifth Amendment protections and meets the Kastigar requirement that the defendant's compelled statements shall not be used against him in subsequent criminal proceedings.¹³

Prior to admitting the videotape of Briseno's state trial testimony, the district court held a Kastigar hearing in which it assumed that Briseno had read Koon's and Powell's compelled statements¹⁴ and considered whether Briseno's state trial testimony was tainted by the exposure. The court concluded that Briseno's testimony was not tainted by the exposure to the compelled statements. We review this factual finding for clear error, see Rogers, 722 F.2d at 560, and conclude that it is not clearly erroneous.

The record reflects a legitimate, independent source of information with respect to each matter as to which Briseno testified. Briseno was an eyewitness to the events at issue in the trial and thus had independent personal knowledge of the events to which he testified. In addition, other witnesses at the state trial, including CHP officers Melanie Singer and Timothy Singer and police officer Solano, testified before Briseno and in his presence at length about the events surrounding the arrest of Rodney King. Briseno also saw the Holliday videotape prior to giving his own testimony. Finally, both Koon and Powell testified at the state trial before Briseno testified; Briseno was present in the courtroom on those occasions and heard appellants' testimony. At the Kastigar hearing, the government presented an annotated transcript of Briseno's state testimony, indicating the independent sources for all of the same information contained in the compelled statements.

This case is therefore like Lipkis, in which a witness was exposed to two substantially identical statements, one of which was immunized and one of which was not. Like the prosecution in Lipkis, the prosecution in this case successfully established that Briseno's state trial testimony had a basis in legitimate, independent sources and therefore was not tainted by any exposure to Koon's and Powell's compelled statements.

Appellants also object to the testimony of Mark Conta, the government's use-of-force expert. At the time of the federal trial, Conta was the officer in charge of physical training and self-defense at the Los Angeles Police Academy. At trial he testified regarding use-of-force policy and gave his opinion that most of the baton blows inflicted by Powell and Wind during King's arrest were contrary to LAPD policy. Prior to trial, the district court held a Kastigar hearing and found that Conta had not been exposed to the compelled statements. We conclude that this finding is not clearly erroneous.

Appellants claim that Conta was indirectly exposed to their compelled statements in two ways. First, they contend that Conta listened to the testimony of Fred Nichols, the use-of-force expert the state intended to use at the state trial, at a Kastigar like hearing during the state trial. At that time, Nichols was Conta's supervisor and the officer in charge of physical training and self-defense at the Los Angeles Police Academy. Although the state had planned to use Nichols as its use-of-force expert at the state trial, Nichols was disqualified as a witness after he testified at the state Kastigar hearing that he was exposed to the compelled statements and that his testimony would be affected by this exposure. Appellants contend that because Conta was present at this hearing at which Nichols testified regarding his exposure to the compelled statements, Conta also was exposed to the compelled statements.

Conta's presence at the state hearing, however, did not expose him to the compelled statements. The transcript of the hearing reflects that Nichols testified only regarding when he was exposed to the compelled statements and whom he spoke to about those statements. Nichols did not quote or read from the compelled statements, nor did he engage in any discussion regarding the substance of the statements.

Appellants also contend that Conta was exposed to the compelled statements during approximately twenty informal discussions with Nichols about the King incident. At the Kastigar hearing, Conta agreed that he conversed with Nichols about the King incident but stated that at no time did Nichols make any statement that related to or appeared to relate to the content of the compelled statements. Conta further testified:

You see, when the Rodney King incident occurred two years ago today, and we witnessed the TV portions of the tape and then on March the 8th I watched the tape in its entirety as I indicated, and I knew at that time that Sergeant Nichols was probably going to come forward and represent [sic] the state during the prosecution process, and I also knew that sergeant--excuse me--Detective Arce and Kwock who were at the office at this time had requested that Sergeant Nichols prepare a document.

Sergeant Nichols told me that this document was confidential and that he was going to render an opinion that was going to go to the state grand jury. That was a cue to me, and it was very clear in my mind, that Sergeant Nichols was on a mission, and it was his responsibility, and that he was going to go forward and testify for the prosecution, and he was going to go forward and prepare this document. And he told me that he was going to prepare this document and that it was confidential. Confidential. I wanted to stay away from him. I felt that it was his thing and that I wanted to stay away and I didn't want to get into any deep discussions regarding the Rodney King incident based on that fact and that information.

RT 3/3/93 at 39. In addition, Conta noted that his testimony at trial would be based on his twenty-two years of experience as a police officer, his education as a training officer for nine and a half years, his training at the Los Angeles Police Academy in the use-of-force policy and self defense techniques, his review of the Holliday videotape, the arrest report prepared by Powell, the sergeant's log prepared by Koon, a use-of-force report, a CHP supplemental report, and the state trial testimony of Koon, Powell, and Briseno.

Faced with this evidence, the district court found that Conta was not exposed to appellants' compelled statements. We conclude that this finding is not clearly erroneous.

Appellants challenge the district court's refusal to sever their trial from codefendant Briseno's. We review a district court's denial of a motion to sever a trial for an abuse of discretion. United States v. Vasquez-Velasco, 15 F.3d 833, 844 (9th Cir.1994); United States v. Cuozzo, 962 F.2d 945, 949 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 475, 121 L.Ed.2d 381 (1992).

Fed.R.Crim.P. 14 governs the severance of defendants or charges.¹⁵ Rule 14 recognizes that even when defendants are properly joined under Fed.R.Crim.P. 8(b), severance may be appropriate to avoid prejudice to a defendant. The party seeking reversal of the denial of a motion to sever bears the burden of proving such "clear, manifest, or undue prejudice from the joint trial, that [it] violates one of his substantive rights, so that the prejudice is of such a magnitude that the defendant was denied a fair trial." E.g., Vasquez-Velasco, 15 F.3d at 845-46 (internal quotations omitted).

In this case, appellants argue that the district court should have severed the trial on the grounds that they and Briseno presented mutually antagonistic defenses.¹⁶ See, e.g., United States v. Tootick, 952 F.2d 1078, 1083-86 (9th Cir.1991); United States v. Rucker, 915 F.2d 1511, 1513 (11th Cir.1990). Appellants' argument is without merit.

The fundamental flaw in appellants' claim is that Briseno did not raise an inconsistent defense in the federal trial; in fact, the only independent defense he raised was to offer into evidence the boot he wore on the night in question. Thus, no antagonistic defenses were raised in the federal trial.

In fact, Appellants' argument rests on the fact that their defense strategy in the state trial differed from that of Briseno: while appellants' defense was that no excessive force was used, Briseno's defense was that his fellow officers used excessive force which he tried to prevent. Admission of the videotape of Briseno's state trial testimony did not constitute grounds for severance, however, because the majority of statements on the videotape were admitted into evidence to rebut assertions made by Koon and Powell, see Fed.R.Evid. 804(b)(1); Zafiro v. United States, --- U.S. ----, ----, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993), and therefore would have been admitted even if Briseno had not been a codefendant in the federal trial. Moreover, the evidence from the videotape which was admitted solely against Briseno was not unduly prejudicial to appellants. That evidence consisted primarily of Briseno's testimony in the state trial that, after the use of force, he was upset about the use of force and returned to the police station to report the incident. Briseno testified that while he was at the station he noticed a message from Koon over the Mobile Digital Terminal which he interpreted as a report of the incident, and he decided that he did not need to file a report because Koon had already reported the incident. This testimony was neither mutually antagonistic to appellants' defense nor was it unduly prejudicial.

Even if we were to assume that the videotape was admitted only because Briseno was a codefendant, Briseno's state trial defense and appellants' federal defense were not irreconcilable. Although we have recognized that "mutually antagonistic" or "irreconcilable" defenses may be so prejudicial as to require severance, severance based on these grounds is appropriate only when "the acceptance of one party's defense will preclude the acquittal of the other party.... [T]he essence or core of the defenses must be in conflict such that the jury, in order to believe the core of one defense, must necessarily disbelieve the core of the other." United States v. Sherlock, 962 F.2d 1349, 1362-63 (9th Cir.) (internal citations and quotations omitted), cert. denied, --- U.S. ----, 113 S.Ct. 419, 121 L.Ed.2d 342 (1992). In this case, the Briseno tape and appellants' defense were not mutually exclusive because a jury could find that Briseno thought the force was excessive while also finding that the force was not in fact excessive. See, e.g., United States v. Arias-Villanueva, 998 F.2d 1491, 1506-07 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 359, 126 L.Ed.2d 322 (1993). Alternatively, a jury could believe Briseno's testimony that the use of force was excessive but also acquit all of the officers on the grounds that it was not willful.

Appellants also suggest that their defenses were mutually antagonistic because they have taken adversarial positions to Briseno in Rodney King's subsequent civil suit. Appellants do not explain how such a factor is in any way relevant to the district court's denial of their motion to sever in the criminal case. We therefore conclude that because no mutually irreconcilable defenses were presented by Briseno and appellants, the district court did not abuse its discretion in refusing to sever the trial.¹⁷

D. District Court's Failure to Disqualify Powell's Counsel

Koon contends that the district court erred by failing to disqualify Powell's attorney before trial. Most of the relevant facts are not disputed. Shortly after the Rodney King incident, the Los Angeles Police Protective League appointed Michael Stone, its General Counsel, to represent Powell. Darryl Mounger was appointed to represent Koon. Stone also represented Powell in the federal civil case related to this case. Mounger, however, declined to represent Koon in the civil case. In an effort to assist Koon, Stone contacted Thomas Feeley, a civil rights defense lawyer. Feeley agreed to represent Koon in the civil case.

While the state criminal action and the federal civil action were pending, Stone and Feeley joined their practices. They obtained written waivers of conflict from their clients before forming the new firm. After the firm was formed, oral waivers were taken on the record in the state criminal proceeding.

Eleven months after the waiver in state court, and three months before the federal criminal trial was to begin, Koon revoked his waiver and requested that the district court grant whatever relief it deemed appropriate under Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Koon explained that intervening events had led him to believe that a conflict existed. The most important of these events stemmed from the formation of the partnership between Feeley and Stone: Koon feared that Stone might gain access to confidential information possessed by Feeley, and might use it to Koon's disadvantage in the criminal trial.

The district court's solution was to disqualify Feeley from representing Koon in the civil trial, but to allow Stone to continue to represent Powell in the criminal trial. We review that decision for abuse of discretion. See United States v. Baker, 10 F.3d 1374, 1399 (9th Cir.1993).

As the district court explained, the conflict asserted here more closely resembles "successive representation" than "dual representation." The problem Koon complains of is not that his attorney in the criminal case was unable to be completely loyal to him, but rather that confidences which he had divulged to an attorney in another case might be used against him in the criminal case.

The leading case on successive representation in this circuit is Trone v. Smith, 621 F.2d 994 (9th Cir.1980), in which we restated the rule that an attorney must be disqualified if he or she formerly represented an adverse party in a matter "substantially related" to the current representation. Id. at 998 (citing Gas-A-Tron of Arizona v. Union Oil Co. of California, 534 F.2d 1322, 1325 (9th Cir.), cert. denied, 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139 (1976)). Substantial relationship may be presumed where there is a "reasonable probability that confidences were disclosed which could be used against the client in later, adverse representation." Id. at 998. But even if there is no sharing of confidences, "[t]he substantial relationship between the two representations is itself sufficient to disqualify." Id. at 999.

Attorney conflict may require a court to disqualify counsel despite the fact that the rights of a party may be compromised by that disqualification. While a trial judge "must recognize a presumption in favor of [defendant's] counsel of choice ... that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict." Wheat, 486 U.S. at 164, 108 S.Ct. at 1700.

The task for the district court was to balance Powell's qualified Sixth Amendment right to the counsel of his choice against the potential for conflict asserted by Koon. See United States v. Wheat, 813 F.2d 1399, 1402 (9th Cir.1987), aff'd, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); United States v. Cunningham, 672 F.2d 1064, 1070 (2d Cir.1982).

The district court recognized that Powell's interest in retaining Stone was strong. Stone had represented Powell at the state criminal trial, had obtained good results for him there, and was familiar with the case.

The district court found that Koon's interests, by contrast, were weak. The court noted that at the time Feeley and Stone joined their practices, their firm adopted screening procedures designed to ensure that confidential information Koon had imparted to Feeley would not be disclosed to Stone. There was also evidence that Stone had never discussed confidential information about Koon with Feeley, did not have access to Feeley's files, and had never met with Koon outside the presence of one of Koon's criminal attorneys.

This circuit has not yet decided whether such screening procedures, or such evidence, may rebut the presumption that lawyers in the same law firm share information. See Trone, 621 F.2d at 999 n. 4; Paul E. Iacono Structural Eng'r, Inc. v. Humphrey, 722 F.2d 435, 442 (9th Cir.1983). We need not resolve that issue here. On appeal, we have the advantage of hindsight. Allowing Stone to continue as Powell's attorney worked no disadvantage to Koon: Koon points to nothing in the course of trial which even suggests that Stone behaved adversely to him on the basis of confidential information, or, indeed, that Stone behaved adversely to him at all.

This court has cautioned that where a criminal defendant's right to the counsel of his choice is at loggerheads with the need for conflict-free counsel, "[r]eviewing courts should be especially wary of complaints of error," because trial courts are placed "in a position to be whipsawed in the expectation of a guaranteed error no matter which way the courts rule." Wheat, 813 F.2d at 1402. Here, where Koon can point to no ill consequence flowing from the district court's elevation of Powell's right to the counsel of his choice over Koon's right to avert a possible breach of confidentiality, we cannot say that the district court abused its discretion when it found that Koon had shown neither an actual conflict nor a serious potential for conflict. As subsequent events have made clear, the district court accurately assessed the possibilities.¹⁸

Koon also argues that a conflict was evidenced by the following facts: (1) Stone returned to the government a memorandum the government had inadvertently disclosed, and did so without showing the memorandum to Koon; (2) Powell's position on certain evidentiary issues was contrary to Koon's; (3) Powell's sister worked as a secretary in Stone's law office; and (4) Stone had announced during the state court proceedings that an expert might not be able to testify because of an attorney-client relationship with Stone.

The district court found that none of these facts established a conflict: (1) Stone acted properly by returning the government memorandum; (2) Powell's and Koon's positions on evidentiary issues were not necessarily inconsistent; (3) no showing had been made that Powell's sister had access to any material pertaining to Koon; and (4) Koon's fear that potential expert witnesses in this case would decline to testify based on previous contacts with Stone was speculative, and his fear that Stone might place future business advantage ahead of the welfare of defendants was unsupported by evidence.

On appeal, Koon presents nothing to refute these findings. We therefore conclude that the district court did not abuse its discretion by declining to disqualify Powell's attorney.

Appellants challenge the district court's refusal to grant them a hearing on their claim of double jeopardy. Prior to trial, appellants requested an evidentiary hearing to determine if there was sufficient collusion between federal authorities and the state authorities to preclude the federal prosecution under Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). We review the court's denial of this motion for an abuse of discretion. United States v. Russotti, 717 F.2d 27, 31 (2d Cir.1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1273, 79 L.Ed.2d 678 (1984).

The Double Jeopardy Clause of the Fifth Amendment provides "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." Nevertheless, under the doctrine of dual sovereignty, successive prosecutions based on the same underlying conduct do not violate the Fifth Amendment's Double Jeopardy Clause if the prosecutions are brought by separate sovereigns. Heath v. Alabama, 474 U.S. 82, 93, 106 S.Ct. 433, 440, 88 L.Ed.2d 387 (1985); United States v. Guy, 903 F.2d 1240, 1242 (9th Cir.1990).

Our circuit has recognized a narrow exception to this general rule: "[i]f the second prosecution, otherwise permissible under the dual sovereignty rule, is not pursued to vindicate the separate interests of the second sovereign, but is merely pursued as a sham on behalf of the sovereign first to prosecute, it may be subject to a successful double jeopardy challenge." Guy, 903 F.2d at 1242; see also United States v. Figueroa-Soto, 938 F.2d 1015, 1018-19 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1181, 117 L.Ed.2d 424 (1992). This exception is referred to as the "Bartkus exception" in reference to the Supreme Court case from which it was derived. See Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959).

To establish double jeopardy, it is not sufficient for the defendant to show that there was cooperation between federal and state authorities; rather, the defendant must prove that the subsequent prosecuting entity is a "tool" for the first, or the proceeding is a "sham," done at the behest of the prior authority. Figueroa-Soto, 938 F.2d at 1019; Guy, 903 F.2d at 1242-43; United States v. Bernhardt, 831 F.2d 181, 182 (9th Cir.1987).¹⁹ In this case, appellants ask us to remand this case for an evidentiary hearing to determine whether the federal government's prosecution was the product of state and federal collusion extensive enough to amount to a second prosecution by the state. Although we have never articulated what a defendant must show to obtain an evidentiary hearing, we have stated that he must make more than "conclusory allegations" of collusion. Russotti, 717 F.2d at 31.

Appellants point to several factors which, they contend, warrant a hearing in this case: (1) the federal investigation began when the crime occurred and remained active during the state investigation and prosecution; (2) federal and state authorities cooperated with each other, and the state delivered evidence and investigative reports to federal authorities after the state prosecution; (3) witnesses who testified in the federal trial were interviewed by the federal authorities soon after the incident; and (4) the Briseno videotape was admitted into evidence in the federal trial.

Despite these factors, appellants point to nothing that suggests the federal prosecution was merely a sham. These factors at most show cooperation between federal and state authorities. The fact that the federal government has conducted its own investigation weakens appellants' argument, as it indicates that the federal government was not a "tool" of the state authorities. See Guy, 903 F.2d at 1243. Moreover, the fact that evidence developed from the state trial was used in the federal trial does not create a double jeopardy problem. Cf. Figueroa-Soto, 938 F.2d at 1018-19 (evidence collected by federal authorities given to state authorities for state prosecution).

In sum, there is no evidence that the federal prosecution was a "sham" or a "cover" for the state prosecution. Cf. Bernhardt, 831 F.2d at 181-83 (remanding for further factual finding where defendant showed that state prosecutor, who could not prosecute defendant due to statute of limitations, enlisted U.S. Attorney in prosecution with the understanding that the state prosecutor would be the lead attorney in the federal case and would be paid by the state); see also Paiz, 905 F.2d at 1025 n. 14 (no hearing required where defense showed that federal agent was involved in state investigation and arrest and that state prosecutor was designated a U.S. attorney for the federal prosecution). The district court did not abuse its discretion in denying appellants' motions for an evidentiary hearing.

F. Denial of Appellants' Peremptory Challenges

Appellants claim that the district court denied them the right to exercise peremptory challenges against two black jurors.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that the discriminatory exercise of peremptory challenges violates the equal protection clause. Batson's holding has been extended to peremptory challenges exercised by criminal defendants. Georgia v. McCollum, --- U.S. ----, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); United States v. DeGross, 960 F.2d 1433, 1339-42 (9th Cir.1992) (en banc). Under Batson, the prosecution first must make out a prima facie case of racial discrimination; to rebut, the defense must then articulate a race-neutral explanation for the challenge. McCollum, --- U.S. at ----, 112 S.Ct. at 2359.²⁰ We review the district court's factual findings for clear error. DeGross, 960 F.2d at 1442.

Juror No. 263, a black man, provided the following answers on a questionnaire he filled out before voir dire:

98. (a) How would you describe the media coverage of the underlying incident between the police officers and Rodney King?

X Fair and accurate

Distorted and exaggerated

(b) How would you describe the media coverage of the previous trial?

X Fair and accurate

Distorted and exaggerated

. . . . .

109. What was your personal initial reaction to the verdicts in the state court trial?

My personal reaction was unfair.²¹

110. Did you feel that justice had been served or were you disappointed with the verdicts?

Disappointed.

When Juror No. 263 was questioned on voir dire his answers changed. He stated that he no longer thought the verdict was unfair, and explained that his ideas had changed "after listening to things" said by others during the voir dire. RT 2/22/93 at 62. He said that his opinion now was that justice had been served by the Simi Valley verdicts; he was no longer disappointed in those verdicts. He also stated that although he thought at the time the Holliday videotape was first aired that what the defendants had done was wrong, he had now changed his perception, because through the voir dire he had come to realize that he "didn't have the whole facts to base an opinion on." Id. at 75.

Juror No. 263 had also written on his questionnaire that what he remembered about the Rodney King case "was how bad the news people handled a very important trial." Id. at 61. On voir dire, he explained that in this answer he had been referring to the news media's exploitation of the event.

A defense challenge for cause was denied. The defendants then sought to exercise a peremptory challenge. The government objected on Batson grounds, and the district court asked the defense to articulate race-neutral reasons for the challenge.

Appellants contend that the district court erred by not first requiring the government to make out a prima facie case. At this stage, however, any error of this kind is irrelevant: "[o]nce [the party making the peremptory challenge] has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the [party opposing the peremptory challenge] had made a prima facie showing becomes moot." Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991) (plurality opinion); United States v. Changco, 1 F.3d 837, 839-40 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 619, 126 L.Ed.2d 583 (1993) (same); United States v. Bishop, 959 F.2d 820, 824 (9th Cir.1992) (same).²²

The defense furnished two reasons for challenging Juror No. 263: the juror's answers about press coverage were inconsistent both within the questionnaire and with his answers in court; and Juror No. 263 had stated on his questionnaire that he was disappointed in the Simi Valley verdicts, and found them unfair. To refute these reasons, the government argued (1) that Juror No. 263's answers regarding the press were not inconsistent, and (2) that Juror No. 263's answers on the questionnaire regarding the Simi Valley verdicts were superseded by the more favorable answers he gave on voir dire, and that the defense had accepted non-minority jurors who had changed their answers in apparent response to the educative process of the voir dire. The government also argued that the defense had engaged in a pattern of exercising peremptory challenges against minority jurors, and that defense counsel had questioned minority jurors vigorously, in an attempt to unearth something which would serve as a basis for disqualification, while using voir dire with white jurors as an opportunity to educate and indoctrinate.

The district court, after hearing argument from all counsel, stated as follows:

[T]he Court believes and so rules that the government has made a prima facie showing and that considering the totality of the circumstances that do pertain, the explanation for the challenge is insufficient, it does not meet the test and, therefore, the challenge will not be allowed.

RT 2/22/93 at 105. In reviewing this finding, we must consider "all relevant circumstances," including any pattern of peremptory challenges against minority jurors and the questions and statements made during voir dire. Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723.

We do not find in the record clear-cut evidence either way. The defendants' claim that Juror No. 263's answers about the press were inconsistent appears weak: media coverage can be exploitative and accurate at the same time. The defendants' stated concerns about Juror No. 263's reaction to the Simi Valley verdicts appear to stand on firmer ground, but in at least one instance, the defense accepted without challenge a non-minority juror who professed to have been shocked by the Simi Valley verdicts, and who stated that she had anticipated on the basis of the Holliday video that at least one of the defendants in the state prosecution would be convicted. The record reveals that the defense attorneys engaged in far more vigorous questioning of Juror No. 263 than of the non-minority jurors who were questioned on the same day, although there are also suggestions in the record that those jurors may have appeared desirable to the defense for reasons other than race (e.g., positive contacts with or friends in law enforcement). Minority jurors questioned on previous days were subjected to vigorous voir dire by defense counsel; several non-minority jurors, however, were closely questioned as well. After the questioning on previous days, the defendants collectively or individually exercised against minority jurors two of the three peremptory challenges they ultimately used. A third minority juror, No. 598, initially was not challenged by the defense.

The evidence points in both directions. In such a situation, we must defer to the district court's factual findings: " 'where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.' " Hernandez, 500 U.S. at 369, 111 S.Ct. at 1871 (plurality) (quoting Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)). We note that in this case the evidence was bound up at every stage with the need to make determinations of credibility. As the Supreme Court has explained,

[i]n the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of [that attorney's] state of mind based on demeanor and credibility lies "peculiarly within a trial judge's province."

Hernandez, 500 U.S. at 365, 111 S.Ct. at 1869 (quoting Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 854, 83 L.Ed.2d 841 (1985)). Here, the district court's observation of demeanor was particularly important, since the court had to assess not only the credibility of the attorneys, but also the credibility of those jurors who purported to have been reformed through the educative process of the voir dire. The two credibility assessments were interrelated: the more convincing the juror, the less believable the attorney who attempted to exercise the challenge.

Determinations as to lawyer credibility were clearly the crux of the matter in this case. As the Fifth Circuit recently noted in the context of a McCollum challenge, "the ultimate inquiry for the judge is not whether counsel's reason is suspect, or weak, or irrational, but whether counsel is telling the truth in his or her assertion that the challenge is not race-based." United States v. Bentley-Smith, 2 F.3d 1368, 1375 (5th Cir.1993). Recognizing that on this most crucial issue, "[w]e have only a cold transcript to guide us while the trial judge was there to observe the jury selection--day in and day out," Burks v. Borg, Nos. 93-15263/16546, 1994 WL 280285 at * 4 (9th Cir. June 27, 1994), we will not substitute our judgment for that of the district court.

The jury was sworn on February 22, 1993. On February 23, 1993, Koon's attorney informed the court that Juror No. 421, a reserve police officer who had been excused for cause, had contacted him: Juror No. 421 had related to Koon's attorney that Juror No. 598, a black woman seated on the jury, had made various disdainful comments to him regarding defense strategy and the racial composition of the jury. Koon moved to reopen the voir dire. The court summoned Juror No. 421.

In court, Juror No. 421 testified that when he had told Juror No. 598 that he felt she was "good jury material," she responded that the Simi Valley jury had been all white; that "they" (the defense attorneys) had managed to get all the blacks kicked off; and that they would most likely do the same in the federal trial.

Koon renewed his motion to reopen voir dire on the basis that the statements attributed to Juror No. 598 were inconsistent with her answers on the questionnaire and on voir dire. Koon also moved for a mistrial, and all defendants joined. The court took the motions under submission. The following day, the court denied the mistrial motions and informed counsel that it would consider a brief questioning of Juror No. 598.

On February 25, 1993, the court and all counsel met with Juror No. 598 in chambers, and the court questioned Juror No. 598 about Juror No. 421's allegations. Juror No. 598 denied them all. The court asked counsel if they had anything else. Only the government attorney replied, and he said that he had nothing. The in-chambers conference was adjourned. In open court, Wind again moved for a mistrial, and Briseno joined the motion. Koon and Powell did not. The motion was denied. The trial then commenced, with Juror No. 598 seated on the jury.

Appellants now argue that the district court erred because "it denied the defense the ability to exercise a peremptory challenge." Br. of Appellant Powell at 31. The record does not support this argument. Rather, the record reveals that Koon and Powell simply dropped the issue after the in camera questioning of Juror No. 598.²³

We therefore review the case for plain error affecting substantial rights. United States v. Olano, --- U.S. ----, ----, 113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993); United States v. Sterner, 23 F.3d 250, 251 (9th Cir.1994). Assuming without deciding that substantial rights were at issue here, we see no plain error. When a court is informed that a juror may have failed to disclose a relevant fact during voir dire, the proper course of action, once the jury has been sworn, is for the court to question the juror and excuse her if necessary, not to reopen the whole jury selection process. See United States v. Berryhill, 880 F.2d 275, 279 (10th Cir.1989) (affirming conviction over defendant's contention that he was denied his right to exercise peremptory challenges, where information about jurors which should have been disclosed on voir dire was disclosed after first day of trial, and where district court questioned jurors, discharged one of the two, and seated an alternate), cert. denied, 493 U.S. 1049, 110 S.Ct. 853, 107 L.Ed.2d 846 (1990). The district court followed the procedure which has been endorsed by this court in cases of juror bias or misconduct, carefully questioning both the juror whose impartiality had been attacked and other relevant witnesses, and inviting counsel to do the same. See United States v. Armstrong, 909 F.2d 1238, 1244 (9th Cir.), cert. denied, 498 U.S. 870, 111 S.Ct. 191, 112 L.Ed.2d 153 (1990); United States v. Sears, 663 F.2d 896, 899-900 (9th Cir.1981), cert. denied, 455 U.S. 1027, 102 S.Ct. 1731, 72 L.Ed.2d 148 (1982). The district court found that Juror No. 598 was not biased, and nothing in the record establishes that that finding was clearly erroneous. We find no error here, let alone the plain error which warrants reversal where a claim has been abandoned below.

Appellants argue that several statements made by the prosecution during its rebuttal closing argument were improper and prejudicial. Because appellants did not make a contemporaneous objection to any comments they now challenge, we review their claims for plain error. United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1 (1985). "A plain error is a highly prejudicial error affecting substantial rights." United States v. Dischner, 974 F.2d 1502, 1515 (9th Cir.1992) (internal quotations omitted), cert. denied, --- U.S. ----, 113 S.Ct. 1290, 122 L.Ed.2d 682 (1993).

Prosecutors may not make comments calculated to arouse the passions or the prejudices of the jury. Viereck v. United States, 318 U.S. 236, 247-48, 63 S.Ct. 561, 566, 87 L.Ed. 734 (1943); Commonwealth of Northern Mariana Islands v. Mendiola, 976 F.2d 475, 486-87 (9th Cir.1992). As the D.C. Circuit has stated:

A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence. Jurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem. The amelioration of society's woes is far too heavy a burden for the individual criminal defendant to bear.

United States v. Monaghan, 741 F.2d 1434, 1441 (D.C.Cir.1984) (internal citations omitted), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985); see also Northern Mariana Islands, 976 F.2d at 486-87; United States v. Solivan, 937 F.2d 1146, 1150-55 (6th Cir.1991).

While recognizing that prosecutors may not appeal to the passions of the jury, in analyzing the effect of a comment upon the jury we accord due respect to the common sense of jurors. The Supreme Court has stated that

[i]solated passages of a prosecutor's argument, billed in advance to the jury as a matter of opinion not of evidence, do not reach the same proportions [as "[t]he 'consistent and repeated misrepresentation' of a dramatic exhibit in evidence"].... [A] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through a lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.

Donnelly v. DeChristoforo, 416 U.S. 637, 646-47, 94 S.Ct. 1868, 1873, 40 L.Ed.2d 431 (1974) (quoting Miller v. Pate, 386 U.S. 1, 6, 87 S.Ct. 785, 787, 17 L.Ed.2d 690 (1967)).

Appellants challenge several remarks made by the prosecution in its rebuttal closing argument. We examine each comment in turn.

Appellants first challenge statements telling the jury that they are "the conscience of the community."²⁴ An appeal to the jury to be the conscience of the community is not impermissible unless it is "specifically designed to inflame the jury." United States v. Williams, 989 F.2d 1061, 1072 (9th Cir.1993) (internal quotations omitted); United States v. Lester, 749 F.2d 1288, 1301 (9th Cir.1984). In this case, when the prosecutor's statement is considered in context, it is clear that it was not designed to inflame the jury, but rather to explain to jurors that they were in the position to determine whether the charged conduct comported with community standards of reasonableness. The reference was not accompanied by any suggestion of the consequences of a particular verdict, nor did the prosecutor suggest to the jury that it had a direct stake in the outcome of the case. See United States v. Kopituk, 690 F.2d 1289, 1342-43 (11th Cir.1982), cert. denied, 463 U.S. 1209, 103 S.Ct. 3542, 77 L.Ed.2d 1391 (1983). The comment did not cross the line "demarcating permissible oratorical flourish from impermissible comment calculated to incite the jury against the accused." Lester, 749 F.2d at 1301 (quotations omitted).

Appellants also challenge the prosecutor's statement that the jury would have to decide what conduct is "acceptable by your police" and what conduct "violates the law." They contend that this statement suggested that the jury was obligated to decide more than just this case. We disagree. In order to decide whether appellants used unreasonable force, the jury was required to decide whether appellants' actions were acceptable or whether those actions violated the law. These comments did not place upon the jurors the burden of maintaining social order. They were not improper.

Appellants next challenge the prosecutor's reference to the Constitution, and contend that the prosecutor told the jury that the survival of the Constitution rested on their verdict. Again, we believe this ascribes an unreasonable meaning to the prosecutor's statements. A jury would interpret the prosecution's references the Constitution to assert that it is their job to interpret and apply the Constitution, and not as a statement that the Constitution will collapse if there were an acquittal. Donnelly, 416 U.S. at 647, 94 S.Ct. at 1873. The reference was within the bounds of advocacy permitted to the prosecutor.

Appellants also argue that the prosecutor invited jurors to convict appellants in order to influence the manner in which police officers are trained to use force. During closing argument, government counsel posed the rhetorical question:

But the real question here is a little different. Knowing what you know about Sergeant Conta and about Sergeant Duke, which of those two officers would you want teaching recruits how much force can be used against the citizens of this community? That's the real question, and you know the answer.

RT 4/10/93 at 75.

We do not understand this comment to invite jurors to convict defendants in order to influence the manner in which police are trained. Donnelly, 416 U.S. at 647, 94 S.Ct. at 1873. The remark was made in response to defense closing arguments, in which counsel compared the testimony of Conta, the government use-of-force expert, and Duke, the defense use-of-force expert. Defense counsel had asked the jurors to consider which officer--Conta or Duke--they would prefer to call in the middle of the night when they needed help, and suggested that the jurors would prefer Duke. In the government's rebuttal, counsel compared the testimonies of Duke and Conta, and then made the challenged comment. In this context, a jury would understand the prosecutor's comments as a challenge to Duke's opinion regarding what is reasonable and unreasonable in the use of force. The comment was not improper.

The final comment to which appellants object is troubling. During the trial, the government had emphasized that appellants failed to write in their police reports that King was on the ground when most of the force was used, and argued that this omission occurred because appellants knew that the use of force was unreasonable. In response, defense counsel suggested that people often make mistakes about what they see and suggested that when the jury first saw the video, they noticed different things. On rebuttal, government counsel responded:

Now, how does Mr. Stone explain the lies and omissions? Well, he tells you that everyone sees things differently....

When the video was played people may have noticed different details about what was occurring in the video, but there was one thing that everyone from Paris to Tokyo noticed, one thing that everyone saw. There was one thing that caused horror and outrage throughout this world. There was one thing that neither you nor anyone else missed when they saw that video tape. And the thing that everybody saw, that everybody was so outraged about was that the defendants were beating a man who was on the ground. That's why there was such outrage. That's why there was such uproar.

RT 4/10/93 at 81-82.

These remarks regarding the "horror and outrage" evoked from "Paris to Tokyo" by the Holliday video went beyond the bounds of appropriate advocacy and were improper. In this case, the worldwide broadcast of the Holliday videotape and the acquittal of appellants by the Simi Valley jury sparked widespread rioting and general public outrage of which the jurors could not help but be aware. In this context, the prosecutor's references to public outrage could easily incite the passions, fears, and prejudices of the jurors, remind them of the social ramifications of their verdict, and persuade them to convict the defendants for reasons irrelevant to appellants' guilt.

Even when a remark is improper, however, we can reverse only when the statement substantially prejudices a defendant's trial. E.g., Territory of Guam v. Quichocho, 973 F.2d 723, 727 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1014, 122 L.Ed.2d 162 (1993); Lester, 749 F.2d at 1301. While we certainly do not condone the government's behavior, we also cannot find that it constitutes plain error. We rely on several factors to reach this conclusion.

First, appellants have drawn a few sentences from a trial that lasted over a month and from detailed closing arguments that lasted many hours. The remarks were not part of a series of improper comments by the prosecutor, but were in fact made in response to defense arguments: i