                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 14-1836

                     UNITED STATES OF AMERICA,

                                Appellee,

                                     v.

                            SHAWN COUGHLIN,

                         Defendant-Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M. Gorton, U.S. District Judge]


                               Before
                       Howard, Circuit Judge,
                    Souter,* Associate Justice,
                     and Lipez, Circuit Judge.


     Kenneth H. Anderson, with whom Byrne & Anderson, L.L.P. was on
the brief, for appellant.
     Crystal S. Yang, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.


                               May 7, 2015




     *
          Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
     SOUTER, Associate Justice.   Shawn Coughlin, a sergeant with

the Plymouth, Massachusetts Police Department, was charged under 18

U.S.C. § 242 with willfully assaulting an obstreperous arrestee

handcuffed and detained in a holding cell, thus violating the

arrestee's right under the Fourth Amendment to be free from

excessive force.   The indictment read that Coughlin struck the

victim in the head and kneed him in the body, "resulting in bodily

injury," an element that elevated the crime charged to a felony.

     The government's evidence at trial consisted of video footage

of the holding cell, showing the incident between Coughlin and the

victim; the testimony of a use-of-force expert, who reviewed the

video record of the bodily movements of Coughlin and the victim and

gave his opinion that Coughlin struck the victim with his palm and

knees and that such blows were unnecessary under the circumstances;

and testimony from other officers on the scene, one of whom

confirmed that Coughlin hit the victim with his palm and knee.

Coughlin took the stand in his own defense, offered his own use-of-

force expert, and presented witnesses testifying that the victim

did not report any injuries in the hours and days after the

incident.   The jury   convicted Coughlin, and specifically found

that he caused the victim bodily injury.1

     Coughlin raises essentially three claims of error, the first


     1
       Coughlin was also charged and convicted of one count of
falsifying a record in a federal investigation, in violation of 18
U.S.C. § 1519.

                               -2-
being denial of his several motions for acquittal under Federal

Rule of Criminal Procedure 29.     Although he claimed insufficient

evidence for any finding of guilt, the thrust of his argument then

and now is that a jury could not conclude that the victim suffered

"bodily injury," except to such a de minimis degree as to be

legally inconsequential under the statute. Coughlin notes that the

victim neither testified at trial nor reported an injury, and he

emphasizes the want of testimony that the victim uttered any

audible expression of pain.

     In our review, which is de novo,

     we examine the evidence, both direct and circumstantial,
     in the light most favorable to the jury's verdict. We do
     not assess the credibility of a witness, as that is a
     role reserved for the jury. Nor need we be convinced
     that the government succeeded in eliminating every
     possible   theory   consistent   with   the   defendant's
     innocence. Rather, we must decide whether that evidence,
     including all plausible inferences drawn therefrom, would
     allow a rational factfinder to conclude beyond a
     reasonable doubt that the defendant committed the charged
     crime.

United States v. Trinidad-Acosta, 773 F.3d 298, 310-11 (1st Cir.

2014) (citations omitted).

     A decade ago, this court held that "bodily injury" under the

statute   includes   "(A)   a   cut,    abrasion,   bruise,   burn,   or

disfigurement; (B) physical pain; (C) illness; (D) impairment of

[a/the] function of a bodily member, organ, or mental faculty; or

(E) any other injury to the body, no matter how temporary." United

States v. Bailey, 405 F.3d 102, 111 (1st Cir. 2005) (brackets in


                                  -3-
original).2

        Under this broad definition of "bodily injury," Coughlin's

challenges are wholly without merit.         A rational jury could easily

find that the video evidence showed what the government expert

concluded and direct witness testimony confirmed, that Coughlin hit

the victim with the palm of his hand and knee, and the same jury

could infer that the recipient of such blows suffers at least some

temporary physical pain. This is all the statute requires, against

which       Coughlin's   arguments   would   impermissibly   require   that

inferences and credibility determinations be drawn in his favor,

and against support for the verdict.

        Coughlin's next claim is that the district court erroneously

failed to instruct the jury as he requested on the "objective

reasonableness" standard of excessive force.          The district court

gave the following instruction:

        A law enforcement officer may use only that force which
        would appear necessary to a reasonable law enforcement
        officer on the scene, not one with the benefit of
        hindsight, in order to prevent injury to himself or
        others, bring a subject into custody or keep an arrestee
        in custody. An objectively reasonable officer may not,
        however, use more force than is reasonably necessary to


        2
       Much of Coughlin's brief on appeal is devoted to arguing, as
mentioned, that there should be a de minimis exception to the
definition of "bodily injury." But any such argument is foreclosed
by Bailey, which accepts "any" "injury" "no matter how temporary."
405 F.3d at 111. Moreover, as counsel conceded at oral argument,
Coughlin waived this argument below. Coughlin similarly failed at
trial to make his current argument that the court's bodily injury
instruction was in error, and, in any event, that instruction fully
comported with this court's holding in Bailey.

                                      -4-
        accomplish these purposes, nor may he use force to
        punish, retaliate or deter future misconduct. In order
        for you to convict the defendant, you must find that the
        government has proven beyond a reasonable doubt that his
        actions were not reasonable based upon a consideration of
        all of the facts and circumstances judged from an
        objective consideration of the perspective of the officer
        at the scene.

Coughlin asked the district court to include portions of the

opinion in Graham v. Connor, 490 U.S. 386 (1989), particularly its

observation that police officers often must make "split-second

judgments" about the use of force, id. at 397.

        We review for abuse of discretion when enquiring whether the

district court's instructions adequately explained the law, Baker

v. Goldman, Sachs & Co., 771 F.3d 37, 58 (1st Cir. 2014) (citation

omitted), and find no abuse here. The district court's instruction

properly summarized objective reasonableness, specifically warning

the jury against judging with the benefit of hindsight and twice

referring to the required perspective of the police officer at "the

scene." Coughlin may prefer the "split-second" language in Graham,

but he is not entitled to his preferred phrasing as against the

court's adequate charge. See United States v. Baird, 712 F.3d 623,

633 (1st Cir. 2013) ("District courts have the prerogative to craft

the particular verbiage [used in] jury instructions.                So long as

that language properly explains the controlling legal standards

.   .   .   it   will   not   be   second-guessed   on   appeal."   (citations

omitted)).

        There being no specific error, Coughlin's final claim of

                                        -5-
cumulative error is without merit.

     The judgment of the district court is affirmed.




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