                              In the
 United States Court of Appeals
                For the Seventh Circuit
                          ____________

No. 02-2528
UNITED STATES     OF   AMERICA,
                                                Plaintiff-Appellee,
                                 v.

DESMOND CHRISTIAN,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
            No. 00 CR 87—Sarah Evans Barker, Judge.
                          ____________
  ARGUED FEBRUARY 21, 2003—DECIDED AUGUST 19, 2003
                   ____________

  Before CUDAHY, MANION and ROVNER, Circuit Judges.
  ROVNER, Circuit Judge. Desmond Christian was a police
officer who attacked a suspect after the man hurled a hate-
ful racial epithet at him. Two of Christian’s fellow officers
held the suspect while Christian punched him and kneed
him in the face. The other officers eventually pled guilty to
misdemeanor charges of deprivation of rights under color of
law in violation of 18 U.S.C. § 242. Christian was charged
with a felony under that same section and was subse-
quently convicted by a jury and sentenced to 33 months’ in-
carceration and 2 years of supervised release. Christian
challenges several evidentiary rulings and the sufficiency of
the evidence. He also urges us to find that the government
should have been estopped from charging him with a felony
when it charged his co-defendants with misdemeanors
under the same facts. We affirm.
2                                                No. 02-2528

                              I.
   What began as a bar fight ended in criminal charges
against both the unruly bar patron and some of the police
officers who responded to the call. Desmond Christian
worked the night shift for the Kokomo, Indiana police de-
partment with fellow officers Jason Hahn and Craig Smith.
Shortly after midnight on October 20, 1998, the officers
were called to the scene of a fight at the Kokonuts Bar. By
the time the officers arrived, other bar patrons had already
removed an intoxicated customer named Kenneth Kail from
the bar to the parking lot. Kail was argumentative and un-
cooperative, and eventually Officers Smith and Hahn
tackled him and placed him in handcuffs. In order to fully
subdue him, Officer Smith sprayed Kail with mace. As an-
other officer drove Kail to the Howard County Jail, Kail
began banging his head against the Plexiglas divider that
separated the front seat from the back seat in the police
cruiser. Officer Smith again sprayed Kail with mace in an
effort to subdue him. Once they arrived at the jail, the of-
ficers handed Kail over to jail personnel who took him to
the showers to wash off the mace.
  When Kail finished his shower, jail personnel brought
him back to the processing area. Christian was in the pro-
cessing area filling out paperwork. Hahn and Smith were
also present, along with several correctional officers.
At some point, Christian and Kail began to exchange words.
The taunting escalated until Kail called Christian (who is
African-American) a “nigger” as two correctional officers es-
corted Kail past Christian to a chair. As the two jail officers
stood watch next to their prisoner, Kail continued his ver-
bal barrage but remained seated in the chair. Christian,
Hahn and Smith pushed the jailers aside and Hahn
sprayed mace at Kail. Then, as Hahn and Smith pinned
Kail to the chair, Christian forcefully kneed and punched
Kail in the face several times. Christian then asked Kail,
“Now you think I’m still a nigger now?” Tr. at 266. See also
No. 02-2528                                                 3

Tr. at 410 (testimony that Christian asked Kail, “Am I still
a nigger?”).
  After the beating, a correctional officer escorted Kail to a
holding cell. Kail requested medical attention and an am-
bulance technician examined him. Christian was present in
Kail’s cell during the examination. Kail told Christian to
leave his cell and Christian refused, commenting that he
was free to go anywhere in the jail he wanted. Later that
morning, a correctional officer photographed Kail’s bruised
and swollen face, including a cut on his lip.
  Christian, Hahn and Smith failed to mention this assault
in their official police reports and denied the incident when
interviewed by the internal affairs unit of the police de-
partment. Hahn and Smith also lied to a grand jury inves-
tigating the incident, and Christian threatened another
officer about what would happen if Christian were indicted.
Christian was charged with felonious deprivation of civil
rights under color of law in violation of 18 U.S.C. § 242.
Hahn and Smith were charged with misdemeanor viola-
tions of section 242. Both pled guilty to these misdemeanor
charges and agreed to cooperate with the government in the
prosecution of Christian. Christian exercised his right to a
jury trial and was convicted after a three-day trial. The
district court sentenced Christian to 33 months’ imprison-
ment and two years of supervised release. He appeals.


                             II.
  On appeal, Christian argues that because the government
entered into plea agreements with Smith and Hahn for mis-
demeanor violations of section 242, the government should
have been estopped from presenting evidence of bodily
injury at his trial. In the alternative, Christian maintains
that those plea agreements constitute an admission by the
government that Kail suffered no bodily injury. Christian
4                                                No. 02-2528

also challenges the district court’s exclusion of certain ex-
pert testimony concerning the extent of Kail’s injuries.
Finally, Christian contends there was insufficient evidence
presented to the jury to find that he acted under color of
law.


                             A.
  Christian, Hahn and Smith were all convicted of violating
18 U.S.C. § 242, deprivation of rights under color of law. A
violation of section 242 may be charged as a misdemeanor
or a felony, depending on whether bodily injury results from
the acts committed in violation of section 242. Christian
argues that the government’s plea agreements with Smith
and Hahn for misdemeanor charges should estop the gov-
ernment from claiming that Kail suffered any bodily injury.
After all, Christian argues, the charges against all three
defendants arose from the same incident and Kail either
suffered bodily injury or did not. If the government agreed
to charge his co-defendants with misdemeanors, then the
government must be conceding that Kail suffered no bodily
injury. Therefore, Christian maintains, the government
must be judicially estopped from claiming bodily injury in
his case.
  The doctrine of judicial estoppel is intended to protect the
integrity of the judicial process. New Hampshire v. Maine,
532 U.S. 742, 749 (2001). It is an equitable concept provid-
ing that a party who prevails on one ground in a lawsuit
may not in another lawsuit repudiate that ground. United
States v. Hook, 195 F.3d 299, 306 (7th Cir. 1999), cert. de-
nied, 529 U.S. 1082 (2000). Judicial estoppel may apply
when (1) the later position is clearly inconsistent with the
earlier position; (2) the facts at issue are the same in both
cases; (3) the party to be estopped convinced the first court
to adopt its position; and (4) the party seeking to assert an
inconsistent position would derive an unfair advantage or
No. 02-2528                                                  5

impose an unfair detriment on the opposing party if not
estopped. Maine, 532 U.S. at 750; Hook, 195 F.3d at 306.
Christian argues, and the government does not seem to dis-
agree, that the second and third elements are easily met.
The prosecutions of Smith and Hahn arose out of the same
core set of facts that led to Christian’s indictment, estab-
lishing the second part of the test. The court accepted the
guilty pleas of Smith and Hahn to misdemeanor charges
under 18 U.S.C. § 242, and so the third element is met as
well. The parties do not address the fourth element but
focus their discussion instead on whether the government’s
position in Christian’s case was “clearly inconsistent” with
the position it took in the Smith and Hahn cases.
  We turn first to the plea agreements themselves. In both
Smith’s and Hahn’s plea agreements, Christian’s co-defen-
dants acknowledged that, as a result of the jail house at-
tack, “Kail suffered a bloody lip and pain from the blows.”
R. 70, Ex. D at 10; R. 70, Ex. E at 9. Thus, both plea agree-
ments acknowledged that Kail suffered bodily injury dur-
ing the jailhouse altercation. There is therefore nothing
factually inconsistent between the plea agreements entered
into by Smith and Hahn and the government’s charge of a
felony against Christian. Christian maintains, however,
that the very fact that the government charged Smith and
Hahn with misdemeanors indicates that Kail suffered no
bodily injury.
  Christian’s argument seriously misconstrues the purpose
and operation of plea agreements. The plea agreements in
this case are typical of bargains the government strikes
with defendants every day. In exchange for a plea of guilty
to the charged offense (or, as occurred here, a lesser offense)
and a promise to cooperate with the government in the
prosecution of a co-defendant, the government often agrees
to dismiss or refrain from bringing additional charges. See
Fed. R. Crim. P. 11(c). When a court accepts a plea of
guilty, it must determine that there is a factual basis for
6                                                No. 02-2528

the plea. Fed. R. Crim. P. 11(b)(3). We take this to mean
that the court must find that the facts support the charge;
the facts may prove more than what is charged but not less.
See, e.g., United States v. Martin, 287 F.3d 609, 621 (7th
Cir. 2002), cert. denied, 123 S. Ct. 116 (2002) (noting the
court may accept a plea agreement that includes dismissal
of any charges so long as the court determines that the
remaining charges adequately reflect the seriousness of the
actual offense behavior and that accepting the agreement
will not undermine the statutory purposes of sentencing or
the sentencing guidelines). Under the facts recited in
Smith’s and Hahn’s plea agreements, the government
could have charged the defendants with either misde-
meanor or felony charges of deprivation of rights. Because
Smith and Hahn saved the government the expense of a
trial and because they cooperated in the prosecution of
Christian, the government agreed to charge them with a
lesser offense, one of the many possibilities contemplated by
Rule 11(c). The court accepted those agreements presum-
ably after determining that the charges adequately re-
flected the seriousness of their offense conduct. To accept
Christian’s position would obliterate the usefulness of plea
agreements. The government would lose its ability to bar-
gain in cases involving more than one defendant because
it would be forced to charge each defendant identically. If it
offered to charge a lesser offense to a cooperating defen-
dant, or to drop certain counts of an indictment, under
Christian’s logic the government would be estopped from
charging non-cooperating defendants with the full extent of
their conduct. See Rodriguez v. Peters, 63 F.3d 546, 563 (7th
Cir. 1995) (prosecutors are frequently forced to offer a plea
bargain in order to obtain testimony that will aid the
prosecution of the more culpable members of a conspiracy,
and an offer of a plea bargain to a lesser charge can be a
proper exercise of prosecutorial discretion). The government
would be left with nothing of value to offer cooperating
defendants. See also Standefer v. United States, 447 U.S.
No. 02-2528                                                 7

10, 22-25 (1980) (listing the many reasons the application
of nonmutual collateral estoppel against the government in
criminal cases is disfavored). Because there is no factual
inconsistency between the plea agreements and the charges
against Christian, and for the other reasons stated above,
we reject Christian’s claim of estoppel. See Levinson v.
United States, 969 F.2d 260, 265 (7th Cir. 1992), cert.
denied, 506 U.S. 989 (1992) (government’s position not
inconsistent when government agreed not to seek fraud
penalties in prior case while claiming fraud in current case
because declining to seek penalty is not an admission that
no fraud occurred). Christian’s alternative argument, that
the plea agreements constitute an admission by the govern-
ment that Kail suffered no bodily injury, must be rejected
for the very same reasons. See United States v. Delgado, 903
F.2d 1495, 1499 (11th Cir. 1990), cert. denied, 498 U.S. 1028
(1991) (plea agreements do not operate as admissions by the
government that a particular crime was not committed
because the government often agrees to accept a plea to a
lesser charge for many reasons, including to obtain the
cooperation of a defendant in the prosecution of co-defen-
dants).


                             B.
  We turn next to the district court’s exclusion of certain
expert testimony. Dr. John Pless served as an expert wit-
ness for the defense. The prosecution sought to exclude
Pless’s testimony and the district court held a hearing to
consider the prosecution’s objections. In an offer of proof,
Pless testified outside the presence of the jury that injuries
fall into three classifications: mild, moderate and severe.
Pless testified that Kail’s injuries were mild with some
moderate characteristics. The court found that, although
the fact of bodily injury was an element of the government’s
case, the degree of injury was not relevant to the charge
8                                               No. 02-2528

against Christian. The court therefore restricted Dr. Pless’s
testimony to the causation of Kail’s injuries rather than the
severity of the injuries. Christian’s theory of defense was
that Kail suffered the injuries during his arrest and when
he banged his own head against the Plexiglas shield in the
police cruiser. The court therefore allowed Dr. Pless to
testify as to whether the force used during the arrest, the
head-banging incident, the alleged beating, or some combi-
nation of those three incidents served as the cause of Kail’s
injuries. The court excluded only a discussion on the sev-
erity of the injuries. Christian argues that the court erred
in excluding testimony regarding the severity of the injuries
because he was charged with a specific intent crime.
He maintains that evidence on the severity of the injuries
was relevant to whether there was a deprivation of rights
in the first place. He points to two jury instructions in
support of this argument:
    To determine whether a use of force is within the lawful
    authority of a police officer, you may consider the ex-
    tent of the injury suffered[.]
R. 93, Jury Instruction 9.
    One factor which you may consider in your determina-
    tion of whether the defendant had the requisite specific
    intent to deprive the victim of a right is the nature and
    degree of force used by the defendant.
R. 93, Jury Instruction 11. Because the extent of injury was
relevant to whether the use of force was lawful and also rel-
evant to specific intent, Christian argues that the exclusion
of Dr. Pless’s testimony was reversible error. The govern-
ment concedes that the degree of injury could be relevant in
some cases but not here because no amount of force was
necessary to subdue a person who was verbally abusive but
posed no physical threat. The government maintains that
Christian’s defense at trial was that he never threw a
punch and never applied his knee to Kail’s face.
No. 02-2528                                                9

  We review the district court’s decision to limit expert
testimony on a specific issue for abuse of discretion. United
States v. Crotteau, 218 F.3d 826, 831 (7th Cir. 2000). The
district court concluded that the degree of severity of the
injuries was not at issue in the trial and that the fact of
injury was the only issue before the jury. The court allowed
Dr. Pless to testify whether the injuries were caused by the
force applied at arrest, the head-banging incident, the
alleged attack by Christian or some combination of those
events, but did not allow testimony regarding the severity
of the injuries. As the government admits, the degree of
severity may be relevant in some cases to the issue of
specific intent. The jury instructions themselves, to which
the government did not object, indicate that, in determining
whether a use of force is lawful, the jury may consider the
extent of the injuries. But we believe that any error in
excluding Dr. Pless’s testimony about the severity of Kail’s
injuries (and we are not concluding that the exclusion was
error) was harmless. This was not a complex medical issue
on which expert testimony was needed. Kail was tackled to
the ground during his arrest, slammed his own head on a
Plexiglas shield as he rode to the jail, and was allegedly
kneed and punched by Christian at the jail. His injuries
included a bloody lip and swelling. These are common in-
juries and the jury was provided with photographs of Kail
after the incident. Christian’s defense was that he did not
knee or punch Kail at all. The jury’s task was to determine
who was telling the truth about the jailhouse incident. Ex-
pert testimony about the degree of swelling would not assist
them in making that determination. The district court did
not abuse its discretion in excluding evidence regarding the
degree of injury suffered given that it allowed testimony
about the cause of the bruises and given that the jury
viewed photographs of the injuries.
10                                               No. 02-2528

                             C.
   Finally, Christian maintains that the evidence was insuf-
ficient to prove that he acted under color of law when he
attacked Kail at the jail. He argues that acts of officers in
their personal pursuits and not undertaken in their official
duties are not under color of law. Christian was not in-
volved in Kail’s arrest or transport to the jail. Once Kail
was released to jail officials, Christian contends, Kail was
not under Christian’s control as a police officer. Rather, he
encourages us to find that the incident was at worst a state
law battery. The government counters that Christian was
on duty and in uniform at the time of the attack. Moreover,
his contact with Kail resulted only because, as a police of-
ficer, he had access to the processing area of the jail.
  Christian has an uphill battle in making out a sufficiency
of the evidence claim. United States v. Irorere, 228 F.3d 816,
822 (7th Cir. 2000). Because the government prevailed
at trial, we view the evidence in the light most favorable to
the government. Id.; United States v. Owens, 301 F.3d 521,
527 (7th Cir. 2002). Only when the record contains no
evidence from which the jury could find guilt beyond a
reasonable doubt may an appellate court overturn a verdict.
Irorere, 228 F.3d at 822. At the time of the attack, Chris-
tian was, as we noted, in uniform and on duty. He was in
the processing area of the jail, and had access to Kail
because he was at the jail on police business. When he
attacked Kail, however, he did so in response to Kail’s racial
epithet, and so was acting for personal reasons.
  A number of cases have addressed the meaning of the
phrase “under color of law.” In 1941, the Supreme Court ad-
dressed the issue in the context of a conspiracy to prevent
the official ballot count in a primary election. United States
v. Classic, 313 U.S. 299 (1941). The court remarked:
     The alleged acts of appellees were committed in the
     course of their performance of duties under the Louisi-
No. 02-2528                                                 11

    ana statute requiring them to count the ballots, to rec-
    ord the result of the count, and to certify the result of
    the election. Misuse of power, possessed by virtue of
    state law and made possible only because the wrong-
    doer is clothed with the authority of state law, is action
    taken “under color of” state law.
313 U.S. at 325-26. A few years later, the Court had oc-
casion to revisit the issue in a context very analogous to the
instant case. Screws v. United States, 325 U.S. 91 (1945). In
that case, three police officers beat to death an arrestee,
claiming that he had reached for a gun (he was handcuffed
at the time) and used insulting language to the officers as
they removed him from the police car at the local court
house. Later evidence showed that one of the officers held
a grudge against the arrestee and had threatened to “get”
him. 325 U.S. at 92-93. In finding that the officers acted un-
der color of law, the Court stated:
    They were officers of the law who made the arrest. By
    their own admissions they assaulted [the arrestee] in
    order to protect themselves and to keep their prisoner
    from escaping. It was their duty under Georgia law to
    make the arrest effective. Hence, their conduct comes
    within the statute.
325 U.S. at 107-08. Comparing the facts to Classic, the
Court noted that the cases were indistinguishable because,
in each, officers of the State were performing official duties,
and in each, the power they were authorized to exercise was
misused. 325 U.S. at 110.
  Our more recent cases have further clarified the limits of
the meaning of “under color of law.” We have stated that
a police officer may be acting under color of law even
though the officer is off-duty at the time of the deprivation
of rights. Latuszkin v. City of Chicago, 250 F.3d 502, 505
(7th Cir. 2001). “Deciding whether a police officer acted un-
der color of state law should turn largely on the nature of
12                                               No. 02-2528

the specific acts the police officer performed, rather than on
merely whether he was actively assigned at the moment to
the performance of police duties.” Pickrel v. City of Spring-
field, Illinois, 45 F.3d 1115, 1118 (7th Cir. 1995). An officer
can be held to be acting under color of law when he or she
is in uniform and displaying a badge. Id. See also United
States v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991), cert.
denied, 504 U.S. 917 (1992) (deputy sheriff was acting
under color of law when he assaulted his wife’s former lover
out of personal jealousy; an air of official authority per-
vaded the incident because the officer used his service
revolver, summoned fellow officers to help him, and ran the
victim out of town in a squad car); United States v. Colbert,
172 F.3d 594, 596 (8th Cir. 1999) (officer acted under color
of law even though he was not on duty at the time he at-
tacked a prisoner, his motivation was personal and his
anger at the prisoner arose from a personal cause; the
events took place in a restricted area of a jail that he
was able to access as a police officer, he had keys to the
cell and had authority to remove the victim from his cell).
  In the context of these cases, we think it is clear that
Christian fails in his sufficiency of the evidence argument.
He was on duty and in uniform at the time of the attack. He
enlisted the aid of two other police officers. The attack took
place in the processing area of the jail and Christian later
told Kail that he (Christian) could go anywhere in the jail
that he wished. Although he was not in custody of Kail and
did not participate in his arrest, he pushed the jailers aside
to gain access to him. The jury had plenty of evidence from
which to conclude that Christian was acting under color of
law. The fact that he attacked Kail for personal reasons and
the fact that he was not the arresting officer do not render
the result otherwise.
No. 02-2528                                               13

                            III.
  In sum, the government was not estopped from charging
Christian with a felony merely because it charged his co-
defendants with a misdemeanor. Nor did the misdemeanor
charges constitute an admission that Kail suffered no bodily
injury. The district court did not abuse its discretion in
declining to admit expert testimony regarding the extent of
Kail’s injuries. Finally, the evidence was sufficient for the
jury to conclude that Christian attacked Kail under color of
law. For all of these reasons, we affirm the judgment of the
district court.
                                                 AFFIRMED.
A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—8-19-03
