         Case: 18-10772   Date Filed: 08/14/2019   Page: 1 of 59


                                                                   [PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 18-10772
                     ________________________

                D.C. Docket No. 9:17-cr-80102-RLR-1


UNITED STATES OF AMERICA

                                                           Plaintiff-Appellee
                                                            Cross Appellant,

                                versus

MICHAEL C. BROWN,

                                                        Defendant-Appellant
                                                            Cross Appellee.

                      ________________________

                            No. 18-10972
                      ________________________

                D.C. Docket No. 9:17-cr-80102-RLR-4



UNITED STATES OF AMERICA

                                                           Plaintiff-Appellee
                                                            Cross Appellant,

                                versus
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PHILIP N. ANTICO,

                                                                Defendant-Appellant
                                                                    Cross Appellee.

                           ________________________

                   Appeals from the United States District Court
                       for the Southern District of Florida
                          ________________________

                                  (August 14, 2019)

Before WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

      The main issue presented by these consolidated appeals is whether sufficient

evidence supports the convictions of Michael Brown for deprivation of rights

under color of law, 18 U.S.C. § 242, and of Philip Antico for obstruction of justice,

id. § 1512(b)(3), for offenses involving an incident of police brutality and a later

coverup. Brown was one of several police officers who assaulted the occupants of

a vehicle that led the officers on a high-speed chase. After the incident, Brown and

the other officers filed reports that omitted most of the details about how they

punched and kicked the occupants. Antico supervised many of these officers, and

after a video of the incident came to light, he had his subordinates substantially

change their reports to better reflect what happened as recorded on the video.

When agents of the Federal Bureau of Investigation interviewed Antico about the

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incident, he gave misleading answers that concealed that his subordinates’ reports

had been changed. At separate jury trials, Brown was convicted of deprivation of

rights under color of law for his role in the assault, and Antico was convicted of

obstruction of justice. At sentencing for both defendants, the district court rejected

the government’s argument that their Sentencing Guidelines ranges should be

calculated using aggravated assault as the underlying offense. The district court

sentenced Brown and Antico to downward-variance sentences of three years’

probation. Brown’s and Antico’s primary challenge is to the sufficiency of the

evidence, and the government cross-appeals their sentences. Because there is

sufficient evidence to support the convictions and no other reversible errors

occurred related to either trial, we affirm the convictions. But because it is unclear

whether the calculation of each defendant’s guideline range rested on a factual

finding infected by legal error, we vacate Brown’s and Antico’s sentences and

remand for resentencing.

                                I. BACKGROUND

      We divide our background discussion in three parts. First, we describe the

facts of the assault and the coverup. Second, we discuss the prosecution of Brown.

Third, we discuss the prosecution of Antico.




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                                    A. The Facts.

      In the early morning of August 20, 2014, Officer Justin Harris of the

Boynton Beach Police Department tried to perform a traffic stop of a vehicle in

which “B.H.” was the driver and “J.B.” and “A.H.” were passengers. B.H. refused

to stop as directed but did not otherwise attempt to evade the officer, so Harris

continued following him. As B.H. approached an entrance to the highway, his

vehicle struck an officer who was on foot. A high-speed chase involving several

officers, including Officer Michael Brown, ensued. During the chase, the officers

heard over the radio that B.H. had intentionally struck an officer with his car. After

B.H. turned onto a residential street, Brown rammed the suspect vehicle and forced

it to stop. A group of officers, including Brown, Harris, Ronald Ryan, and several

others, approached the vehicle with their guns drawn.

      Brown and several other officers then assaulted the vehicle’s occupants.

Brown was one of the first to reach the vehicle, and he moved toward the front

passenger door. Within seconds of reaching the door, he opened it and repeatedly

punched and kicked the front-seat passenger, J.B. Officers Harris and Ryan arrived

seconds later, and they also repeatedly struck J.B. While J.B. was still in the car

with his seatbelt on, Brown attempted to use his Taser against him, twice pulling

the trigger and ejecting the Taser’s probes. After dragging B.H. and A.H. from the


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vehicle, other officers repeatedly struck and kicked them. While the assault was

occurring, a Palm Beach County Sheriff’s Office helicopter flying overhead

recorded the incident.

      Two of the vehicle’s occupants sustained injuries during the assault. B.H.

suffered severe lacerations to his head and face and bruising that caused his eyes to

swell shut. J.B. also suffered severe bruising and lacerations on the face.

      Sergeant Antico, the direct supervisor of Brown, Harris, and Ryan, was not

at the scene of the assault. During the chase, he monitored events on the radio, and

he stopped to attend to the injured officer. But he saw B.H. at the hospital the night

of the incident and was aware of his injuries. And he expected his officers to

document the strikes they had used. Antico left for a scheduled vacation from

August 20 to August 27, so he did not review the involved officers’ reports until he

returned.

      Hours after the incident but before they learned about the video from the

police helicopter, the involved officers—including Brown, Harris, and Ryan—

submitted officer reports about the incident. Boynton police officers are trained

that an officer report is the primary document for reporting the details about an

officer’s use of force. An officer report should include a narrative account that

recounts the types of force an officer used and the circumstances that justified their


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use. For example, if an officer struck and kicked a suspect, he would be expected

to include those details in his officer report.

       Five of the involved officers failed to accurately record their use of force in

their officer reports. Brown wrote in his report that he used a Taser against J.B.

after J.B. ignored loud verbal commands to exit the vehicle, but he did not describe

striking or kicking J.B. Ryan wrote in his report that after Brown used his Taser

against J.B. for failing to exit the vehicle, J.B. complied and was handcuffed. Ryan

failed to note that he had repeatedly punched J.B. Harris wrote in his report that

when he arrived at the vehicle, Brown and Ryan were struggling with J.B., who

refused to exit the vehicle or show the officers his hands. Harris stated that he then

used his Taser against J.B., which allowed the officers to extract J.B. from the

vehicle, but that he had to use his Taser a second time after J.B. continued to resist

arrest. Harris did not mention that he had punched J.B. In addition, two other

officers failed to fully record their use of punches and kicks against B.H.

       The involved officers also filed use-of-force reports. A use-of-force report is

an administrative record that the Boynton Beach Police Department uses to

compile annual statistics on use-of-force incidents. It is a two-page form on which

an officer checks boxes for the general types of force used. The form also instructs

that the officer “must” include in his offense report “[a]ll . . . details of the arrest,”


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the circumstances that “led [the officer] to believe force was necessary,” and the

“[t]ypes of force used and [its] effects.” Unlike officer reports, which are the

official records that the Boynton Police Department may share with the State

Attorney’s Office or with the public, use-of-force reports are internal to the

Boynton Police Department. Boynton officers are trained that checking a box on

the use-of-force report is not a substitute for recording the type of force used in the

officer report. Five of the involved officers, including Brown, Harris, and Ryan,

filed use-of-force reports that checked a box for “[b]lows with hands/fists/feet and

other body parts.”

      After Antico returned to work on August 27, he obtained the helicopter

video and watched it with Brown. Antico then began reviewing the officer reports

that were submitted and validated as complete. He rejected those reports that did

not record strikes or kicks against J.B. and B.H. Antico returned Harris’s and

Ryan’s officer reports, allowing them to change their reports to include that they

struck J.B. Ryan’s amended report also included several new allegations: that J.B.

appeared to be reaching for a weapon before Brown used his Taser; that J.B.

refused to surrender his hands for cuffing after he was pulled from the vehicle; and

that Ryan had then “delivered 3 to 4 knee strikes to [J.B.]’s right thigh.” After

viewing the video, Brown changed his report to include that he struck J.B. several


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times with a closed fist after J.B. refused to comply with loud verbal commands to

place his hands on the dashboard, and Brown added that he used a Taser after J.B.

still refused to comply. Brown continued to omit that he kicked J.B. Antico also

returned reports for two other officers to allow them to add that they struck B.H.

An analysis of the electronic metadata of the reports—referred to at trial as the

“digital audit trail”—revealed that Antico rejected officer reports eleven times in

the 29 hours after watching the helicopter video, including rejecting reports by

Harris and Ryan several times each.

      After the officers made these changes to their reports, Antico approved and

transmitted them to Boynton’s chief of police, Jeffrey Katz. After Chief Katz

reviewed all the evidence regarding the incident, he referred the matter to state and

federal authorities to determine whether the officers violated any laws.

      In February 2015, agents from the Federal Bureau of Investigation

interviewed Antico. At that time, both Antico and the Bureau agents were unaware

that the reporting system for the police department retained a digital audit trail of

the changes that the officers made to their officer reports. During the interview,

Antico recalled numerous details of the incident, which he referred to as “the most

critical incident [he had] been involved in.” For example, his recollection of the

details of the high-speed chase was extensive, covering over fifty transcript pages,


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and included details about the original call from the officer who tried to stop the

suspect vehicle, which officers were involved in the pursuit, and the direction and

streets the suspect vehicle was traveling on. He also admitted that he had watched

the helicopter video with Brown and affirmed that he read every one of his

subordinates’ reports “[w]ord-for-word.”

      Antico’s interview also covered the accuracy of his subordinates’ officer

reports. In responding to questions about what would raise a “red flag” for him

about the reports, Antico repeatedly answered that the failure to record the use of

strikes would be a serious red flag, one which would warrant being investigated by

Internal Affairs. But he stressed that the officer reports did state that the officers

had thrown punches and kicks. He failed to mention that the officers’ initial

completed and validated reports did not disclose that conduct. When asked whether

he returned any of the reports for corrections, Antico replied, “I’d have to check to

see . . . if I rejected anybody’s reports,” adding, “I might have rejected a couple.”

Although he had rejected eleven reports that did not record strikes or kicks against

J.B. and B.H., Antico told the agents that he had “never really had an issue with

. . . these guys not being accurate in their . . . report writing” and “paint[ing] a

picture of what happened.” And he recalled that the only statement he should have




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had a subordinate officer change in his report was a “grammatical error” stating

that a suspect’s face hit the officer’s hand instead of vice versa.

                            B. The Prosecution of Brown.

        A grand jury charged Officers Brown, Harris, and Ryan with deprivation of

rights under color of law, 18 U.S.C. § 242, and several counts of falsification of

records, id. § 1519. In a superseding indictment, the grand jury charged Brown

with an additional count for use of a firearm during a crime of violence, id.

§ 924(c)(1)(A)(i). Later, the district court held a joint trial for Brown, Harris, and

Ryan.

        The video of the incident was the government’s most important evidence

against the officers. The video depicts Brown first disabling the suspect vehicle by

ramming it, then exiting his own vehicle and momentarily pausing with his gun

drawn and pointed at B.H., and then moving rapidly toward the front passenger

door, immediately opening it, and repeatedly kicking and punching J.B.

        Two of the government’s witnesses testified about the video. Chief Katz

testified that, in his opinion of it, he saw Brown come to the front passenger door,

use “some kicks,” and then “reach[] into the vehicle and strike[] [J.B.] in the seat.”

Sergeant Sedrick Aiken, Boynton Beach Police Department’s “use-of-force”

expert, testified that the video depicts Brown kicking J.B. and punching him while


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Brown had his pistol in his hand. Aiken added that it did not look like Brown gave

J.B. any verbal commands, and he explained that even if Brown did give

commands, he did not give J.B. time to comply before he began applying “hard

force” of punches and kicks.

      Officer Patrick Monteith, one of the other officers on the scene during the

assault, testified that when he reached the suspect vehicle, one person had been

dragged out of it but that the officers were still swarming around the vehicle.

Monteith stood in front of the vehicle with his rifle aimed at J.B., who was still in

the front passenger seat. Monteith’s rifle was resting on the windshield itself, and

he was perhaps “two [or] three feet” away from J.B. Monteith testified that he

could see both of J.B.’s hands throughout the time that he was on the scene, and

they were “up, they were blocking, [and] there were no closed fists.” J.B. was also

“jerking in and out of the vehicle . . . violently one way and then the other way,

back and forth.” But these movements were not of his “own volition,” as he “was

being moved” by the officers. Monteith also denied that J.B. ever appeared to be

reaching for a weapon. Monteith explained that when he heard Brown beginning to

activate his Taser, he observed that J.B. was still buckled into his seat, so J.B.

could not have complied with any command to leave the vehicle even if he had




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wanted to do so. Monteith explained that he called out for someone to unbuckle

J.B., after which J.B. was removed from the vehicle.

      The government also elicited testimony about the standards that the Boynton

police employ for the use of force. Sergeant Aiken testified that Boynton police

officers are trained that when an officer encounters “passive resistance”—which

includes “not complying with verbal commands, . . . tak[ing] flight, run[ning] from

[officers], protesting, sit[ting], grab[bing], hold[ing on] to a chair, railing or

staircase,”—he only may use “soft control,” such as “pressure points,” “escort

procedures,” and “escort[s] . . . with come alongs.” A passenger who refuses to get

out of a car when verbally told to do so is engaging in passive resistance. But if an

officer encounters “active resistance”—such as when a subject is “flailing, kicking

arms and legs . . . [or] tak[ing] any fighting stance towards the officer”—the officer

may use “hard force” to incapacitate the subject. Hard force includes the use of a

“[T]aser, baton, bean bag from a bean bag shotgun, punches, if necessary, a punch

with the fist to the soft tissue areas of the body.” In using hard force, the officer

targets “the soft tissue areas, the quadriceps area, calf muscles, shoulder, tricep,

bicep area, [and] muscle mass areas.” Aiken also testified that Brown had last been

trained on the lawful use of force in March 2014, five months before the incident.




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       Aiken then opined on whether Brown’s use of force was reasonable based

on the department’s criteria for the use of force. He first explained that using a

Taser is not justified if a subject simply refuses to get out of a vehicle after being

given three verbal orders to exit. Aiken also read aloud the narrative portion of

Brown’s officer report from after Brown saw the helicopter video. Aiken affirmed

that Brown’s description of J.B. as refusing to obey verbal commands was passive

resistance and would not justify the force that Brown admitted to using—strikes

with a closed fist to the body and the use of a Taser. Aiken also repeatedly testified

that, based on the department’s criteria for the use of force, it was unreasonable for

Brown to punch J.B. with the gun in his hand, to kick him, or to use a Taser against

him.

       Aiken also expressed concerns about the reliability of the officer reports

filed by the three defendants. Aiken affirmed that the officers had initially omitted

many details about the level of force used and the alleged circumstances that

justified the use of force in their reports. Aiken explained that there was no

justification for Brown to omit from his report that he had struck a passenger with

a firearm in his hand and that he kicked him. And Aiken explained that the

officers’ amended reports—which included new details, such as allegations that




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J.B. appeared to be reaching for a weapon and that he would not show the officers

his hands—suggested deception.

      The defense rested without calling witnesses or introducing any evidence.

The jury convicted Brown of deprivation of rights under color of law (count 1) and

of the use of a firearm in a crime of violence (count 2), but acquitted him of the

two counts for falsifying a police record. The jury acquitted Harris and Ryan on all

counts.

      Brown moved for a judgment of acquittal notwithstanding the verdict on the

grounds of sufficiency of the evidence as to count 1 and the legal sufficiency of

count 2. The district court granted the motion as to count 2 but denied it as to count

1. As to count one, the district court determined that the evidence viewed in the

light most favorable to the government was sufficient for a reasonable jury to find

that Brown’s use of hard force, including punches and kicks, was unreasonable

when faced with passive resistance. The district court also ruled that a reasonable

jury could find that Brown’s failure to disclose the extent of his use of force in his

officer report and his violation of departmental policy about the use of force

established his consciousness of guilt and willfulness.

      Brown also moved for a new trial on the ground that the jury’s verdict was

against “the weight of the evidence.” He later supplemented his motion with


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“newly discovered evidence”—an enhanced helicopter video purportedly showing

him reholstering his weapon before striking J.B.—that was not shown to the jury.

The district court instructed Brown to file an amended supplement addressing how

the elements for a motion for a new trial based on newly discovered evidence were

met. See United States v. Thompson, 422 F.3d 1285, 1294 (11th Cir. 2005) (“When

a defendant discovers new evidence after trial that was unknown to the government

at the time of trial, a new trial is warranted only if: (1) the evidence was in fact

discovered after trial; (2) the defendant exercised due care to discover the

evidence; (3) the evidence was not merely cumulative or impeaching; (4) the

evidence was material; and (5) the evidence was of such a nature that a new trial

would probably produce a different result.” (citation and internal quotation marks

omitted)). Brown filed a memorandum acknowledging that the video did not

constitute “newly discovered evidence” under Federal Rule of Criminal Procedure

33(b)(1), but he argued that the district court should consider it anyway in deciding

whether to grant his motion in “the interests of justice.” The government replied

that Brown could not rely on the enhanced video in his motion for a new trial

because he failed to introduce it at trial and that, in any event, the video did not

support his contention that he reholstered his weapon.




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      The district court denied Brown’s motion for a new trial. The district court

first concluded that it was limited to evaluating record evidence, which did not

include the enhanced video. The district court then observed that Brown had been

charged with using several means to assault J.B. other than striking him with his

gun in his hand and that the weight of the evidence did not “preponderate[] heavily

against a finding” that Brown used unreasonable force through one of the other

means. And the district court again ruled that sufficient evidence supported the

verdict.

      Using the 2016 edition of the United States Sentencing Guidelines, the

probation officer initially calculated Brown’s total offense level as 27 based on

“aggravated assault” as the underlying offense. See United States Sentencing

Guidelines Manual §§ 2A2.2, 2H1.1(a)(1) (Nov. 2016). The Guidelines define

aggravated assault as “a felonious assault that involved . . . a dangerous weapon

with the intent to cause bodily injury (i.e., not merely to frighten) with that

weapon.” Id. § 2A2.2 cmt. n.1. The probation officer determined that Brown’s

actions amounted to aggravated assault based in part on his use of a Taser against

J.B. Based on an offense level of 27 and a criminal-history category of I, the

probation officer calculated Brown’s guideline range to be 70 to 87 months’

imprisonment.


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      Brown objected to using aggravated assault as the underlying offense. He

argued that his use of the Taser did not qualify as aggravated assault because he

lacked the intent to cause bodily injury to J.B. The district court sustained the

objection on the ground that “[t]here is insufficient evidence to find by a

preponderance of the evidence that Brown’s intent in using the Taser was to cause

bodily injury, rather than to gain control over J.B.” As a result, the district court

recalculated the guideline range and determined that the total offense level was 16,

producing a sentencing range of 21 to 27 months of imprisonment. The district

court imposed a downward-variance sentence of three years of probation.

                            C. The Prosecution of Antico.

      A grand jury charged Antico with obstruction of justice related to his

interview with the Bureau, 18 U.S.C. § 1512(b)(3), and two counts of falsification

of records related to his aiding and abetting of the filing of false police reports by

Officers Brown and Harris, id. § 1519.

       At trial, the government’s evidence about the incident itself and the

departmental policies on the use of force was essentially the same as at Brown’s

trial. The government primarily relied on the video of the incident and testimony

by Sergeant Aiken to establish that the officers’ actions in assaulting the vehicle’s

occupants violated Boynton’s standards for the use of force.


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       Sergeant Aiken and Chief Katz also testified about Boynton’s policies for

officer reports and use-of-force reports. Their testimony established that an officer

must state whatever force he used in both the use-of-force report and the narrative

section of the officer report. Sergeant Aiken also affirmed that during the thirteen

years he served as training sergeant, he had never heard of an officer not including

details about his use of force in his officer report. Katz and Aiken explained that if

an officer did omit such details, it would be a cause for formal discipline. Both

Katz and Aiken also testified that once a report is “completed” and “validated” by

an officer, it is final and is not a draft report. Aiken testified that it would be

unusual for a supervisor to review an officer report and send it back multiple times

for revisions for a subordinate failing to include important details about his use of

force. He stated that, in his experience, he had never seen a report sent back for

three or more substantive revisions. And he testified that, if a shift officer like

Antico sent back multiple officer reports for several rounds of revisions, he would

remember that event.

       The government also elicited testimony about the digital audit trail of the

officer reports. Douglas Solomon, who was responsible for the Boynton Beach

Police Department’s information technology systems, testified that the digital audit

trial revealed that Antico had rejected eleven reports in the 29 hours after he


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viewed the police helicopter video, including rejecting reports by Officers Ryan

and Harris three times each.

      The government also called Stuart Robinson, formerly an agent of the

Bureau, to testify about the investigation of the incident and about Antico’s

interview with the Bureau. Robinson explained that when he and other Bureau

agents first saw the video of the incident, they “were stunned by what [they] saw.”

The agents requested all reports and all other evidence that had been gathered by

the Boynton police about the incident. Eventually, the agents began interviewing

people involved in the incident, including Antico.

      The government played a video of Antico’s interview, and Robinson

highlighted each of Antico’s misleading statements or omissions. Robinson

testified that Antico’s misleading statements hindered the investigation because

they gave the misimpression that the involved officers’ word could be trusted and

that their reports were credible. Robinson also explained that, outside the digital

audit trail, there was no visible way to detect that the reports had been changed.

      The defense rested without calling witnesses or introducing any evidence. In

his closing argument, Antico stressed that his statements to the Bureau agents

reflected his bad memory and not an intent to mislead.




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      After several hours of deliberating, the jury sent the court a note stating,

“Your Honor, we as a jury have reached a verdict on two counts. On the third we

cannot agree. We sincerely request your insight on this matter.” The district court

then conferred with counsel, and Antico’s counsel proposed that the jury be sent

home for the night to continue deliberating in the morning. He added, “[i]f they

still indicate they are deadlocked after an hour or so, at that point read an Allen

charge to them.” See Allen v. United States, 164 U.S. 492 (1896) (holding that a

trial court may encourage a deadlocked jury to continue deliberating provided it

does so noncoercively). After the government agreed to this suggestion, the district

court asked for confirmation that, if they received another note about the jury

deadlocking, the parties desired the district court to read “the modified Allen

charge,” to which defense counsel replied, “Correct.” The district court then told

the jury to break for the evening and return the following morning to continue

deliberating. Before adjourning for the day, the district court recommended that

both counsel should review “T-5, the modified Allen charge,” referring to the

instruction from this Circuit’s 2016 Pattern Jury Instructions. See Eleventh Circuit

Pattern Jury Instructions (Criminal Cases), Trial Instruction 5, at 685–86 (2016).

      The following morning, the jury sent the district court a second note that

read, “Your Honor, we, the jury, are not able to agree on one count. No amount of


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time, talk, contemplation or discussion of the facts provided shall result in a

unanimous decision.” In discussing the note with counsel, the district court

explained that it could have the jury return a partial verdict for those counts on

which the jury agreed, or it could give the modified Allen charge. The following

colloquy then ensued:

      [Assistant United States Attorney]: Your Honor, we believe at this
      point the Court should give the modified Allen charge in T-5. The
      Government is not opposed to a partial verdict, but I believe Defense
      counsel does not agree, so that is not an option.

      The Court: So, the Government would bring the jury in, acknowledge
      the note and read T-5, the modified Allen charge, and send them back.

      [Assistant United States Attorney]: Yes, your Honor.

      The Court: Defense?

      [Defense Counsel]: That is my request.

The district court replied, “Okay, then I will bring the jury in and do that,” after

which it gave the modified Allen charge.

      After about an hour of deliberation, the jury sent the court a third note

stating that the district court’s “comments were/are material,” and that as a result, it

had reached a verdict. The jury found Antico guilty of the obstruction-of justice-

count, but not guilty of the two falsification-of-records counts.




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       Antico moved for a judgment of acquittal notwithstanding the verdict on the

ground of sufficiency of the evidence. He again argued that the evidence was

insufficient for a reasonable jury to find that he knowingly engaged in misleading

conduct because his statements or omissions to the agents were best explained by

his faulty memory. Antico also moved for a new trial on the ground that the Allen

charge was “unconstitutionally coercive” because it asked the jury to consider the

costs of the trial and possible retrial.

       The district court denied both motions. As to the sufficiency of the evidence,

the district court concluded that there was sufficient evidence for the jury to

conclude that Antico knowingly misled the Bureau by “not disclos[ing] that he had

rejected several reports in quick succession because the reports did not accurately

reflect the use of force that Sergeant Antico saw in the [police-helicopter] video.”

The district court also observed that Antico’s memory of other details of the

incident was “sufficient evidence . . . demonstrat[ing] a knowing intent to mislead

the [Bureau].” As to the motion for a new trial, the district court ruled that its Allen

charge, the language of which came from the Eleventh Circuit Pattern Jury

Instructions, was not unduly coercive.

       Months later, a juror sent Antico’s counsel an email suggesting that jurors

had voted for guilt to ensure that someone would be held accountable for the use of


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force; that their verdict reflected that certain jurors harbored bias against police

officers; and that certain jurors bullied others to reach a verdict, including by

making fun of the complaining juror for having a “crush” on Antico. After

receiving this email, Antico requested that the district court interview the juror in

chambers, with counsel present, to determine whether further investigation was

warranted.

      The district court denied the motion to interview the juror. It explained that

Federal Rule of Evidence 606(b) and our Circuit’s precedent establish “very

stringent limitations” on its authority to question jurors about their deliberations

and to use juror testimony to impeach a verdict. As for the allegation that some

jurors voted guilty to hold someone accountable, the district court ruled that “[t]he

juror’s vague allegations . . . [were] not clear, strong, substantial and

incontrovertible evidence that a specific, nonspeculative impropriety occurred

during the deliberations.” And as to the allegation of bias against police officers,

the district court explained that this allegation did not satisfy the narrow exception

to the no-impeachment rule that applies to racial bias. See Pena-Rodriguez v.

Colorado, 137 S. Ct. 855 (2017). And for the allegation of bullying, the district

court explained that this allegation “describe[d] nothing more than typical features

of jury deliberations” and was “insufficient to violate the no impeachment rule.”


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      One month later, Antico learned that a second juror had spoken to the spouse

of an Assistant United States Attorney who was not involved in the case to discuss

the juror’s experience. Antico moved the district court to compel the government

to disclose what the second juror said to the spouse, arguing that it was akin to

Brady material, see Brady v. Maryland, 373 U.S. 83 (1963), and must be provided

to defense counsel to allow him to evaluate the disclosure and determine whether

to file a motion.

      The district court denied the motion. It determined that Antico’s motion to

compel “fail[ed] to present any evidence that impropriety ha[d] occurred,” but

instead “simply state[d] that a juror spoke with the wife of an [Assistant United

States Attorney] about his or her experience as a juror.”

      As in Brown’s guideline calculation, the probation officer initially calculated

Antico’s total offense level based on “aggravated assault” as the underlying

offense. See U.S.S.G. §§ 2A2.2, 2J1.2, 2X3.1. Based on an offense level of 21 and

a criminal-history category of I, the probation officer calculated Antico’s guideline

range to be 37 to 46 months of imprisonment.

      Antico objected that his guideline calculation should use falsification of

reports as the underlying offense and not aggravated assault. Relying on its ruling

at Brown’s sentencing that Brown’s use of the Taser did not constitute aggravated


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assault, the district court sustained the objection. The district court then

recalculated the guideline range and determined that the total offense level was 14,

producing a sentencing range of 15 to 21 months’ imprisonment. The district court

imposed a downward-variance sentence of three years of probation.

                          II. STANDARDS OF REVIEW

      Three standards of review govern these appeals. We review the sufficiency

of the evidence de novo, “view[ing] the evidence in [the] light most favorable to

the jury verdict and draw[ing] all inferences in its favor.” United States v. Reeves,

742 F.3d 487, 497 (11th Cir. 2014). We also review de novo the “legal

interpretation of the sentencing guidelines” and the “application of the sentencing

guidelines to the facts.” United States v. Cubero, 754 F.3d 888, 892 (11th Cir.

2014). But “[w]e review for clear error the [underlying] factual findings.” Id. We

review for abuse of discretion a decision to give an Allen charge, see United States

v. Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008); a decision not to hold an

evidentiary hearing to investigate alleged juror misconduct after the end of trial,

see United States v. Venske, 296 F.3d 1284, 1290 (11th Cir. 2002); and a denial of

a defendant’s motion for a new trial based on the weight of the evidence, see

United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985).




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                                 III. DISCUSSION

      We divide our discussion in three parts. First, we address the issues related

to Brown’s trial. Second, we address the issues related to Antico’s trial. Third, we

discuss the sentencing issues for both defendants. We conclude that sufficient

evidence supports both officers’ convictions and that no other reversible errors

occurred related to either trial. But we also conclude that Brown and Antico must

be resentenced because it is unclear whether, in calculating the defendants’

guideline ranges, the district court made factual findings infected by legal error.

                      A. The Issues Related to Brown’s Trial.

      Brown raises two issues for our review. First, he challenges whether

sufficient evidence supports his conviction. Second, he argues that the district court

abused its discretion in denying his motion for a new trial.

               1. Sufficient Evidence Supports Brown’s Conviction.
      To convict Brown of deprivation of rights under color of law, 18 U.S.C.

§ 242, the government had to prove that Brown acted “(1) willfully and (2) under

color of law (3) to deprive a person of rights protected by the Constitution or laws

of the United States.” United States v. House, 684 F.3d 1173, 1198 (11th Cir.

2012) (citation and internal quotation marks omitted). When a police officer is

charged with using excessive force in making an arrest, the constitutional right at

issue is the right under the Fourth Amendment to be free from unreasonable
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seizures. See Graham v. Connor, 490 U.S. 386, 394 (1989). Whether an officer

violated this right depends on “whether the officer[’s] actions are ‘objectively

reasonable’ in light of the facts and circumstances confronting [him], without

regard to [his] underlying intent or motivation.” Id. at 397.

      Brown argues that insufficient evidence supports his conviction for two

reasons. First, he argues that his use of force was reasonable because J.B. resisted

with “active force.” Second, he contends that there was insufficient evidence of

Brown’s willfulness. Neither argument has any merit.

      a. Brown’s Use of Force Against J.B. Was Objectively Unreasonable.

      “Determining whether the force used to effect a particular seizure is

reasonable under the Fourth Amendment requires a careful balancing of the nature

and quality of the intrusion on the individual’s Fourth Amendment interests against

the countervailing governmental interests at stake.” Id. at 396 (citation and internal

quotation marks omitted). In making this determination, a jury must “weigh the

quantum of force employed against the severity of the crime at issue; whether the

suspect poses an immediate threat to the safety of the officers or others; and

whether the suspect actively resisted arrest or attempted to evade arrest by flight.”

Dukes v. Deaton, 852 F.3d 1035, 1042 (11th Cir. 2017) (citation and internal

quotation marks omitted). It must consider an officer’s actions “from the

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perspective of a reasonable officer on the scene, rather than with the 20/20 vision

of hindsight,” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243,

1248 (11th Cir. 2004), and recognize that “[t]he calculus of reasonableness must

embody allowance for the fact that police officers are often forced to make split-

second judgments—in circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a particular situation,”

Graham, 490 U.S. at 396–97.

      In considering the “severity of the crime at issue,” the jury looks to the crime

the victim was suspected to have committed when the force was used. See, e.g.,

Stephens v. DeGiovanni, 852 F.3d 1298, 1321–22 (11th Cir. 2017) (judging

whether the officer’s use of force was excessive in the light of the nonviolent

misdemeanors with which the plaintiff-victim was charged); Oliver v. Fiorino, 586

F.3d 898, 908 (11th Cir. 2009) (explaining that the repeated use of a Taser was

“utterly disproportionate” where the plaintiff-victim “was not accused of or

suspected of any crime, let alone a violent one”); Galvez v. Bruce, 552 F.3d 1238,

1243 (11th Cir. 2008) (determining that the charges for nonviolent misdemeanors

against the victim of an assault by an officer weighed in favor of ruling that the

force used against him was excessive). “More force is appropriate for a more

serious offense and less force is appropriate for a less serious one.” Salvato v.


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Miley, 790 F.3d 1286, 1293 (11th Cir. 2015) (alteration adopted) (citation and

internal quotation marks omitted). Nonviolent misdemeanors are “crime[s] of

‘minor severity’ for which less force is generally appropriate.” Reese v. Herbert,

527 F.3d 1253, 1274 (11th Cir. 2008); see also Stephens, 852 F.3d at 1321–22;

Galvez, 552 F.3d at 1243.

      Ample evidence supports the jury’s finding that Brown used excessive force

against J.B. Brown does not dispute that he repeatedly struck, kicked, and twice

used a Taser against J.B. In all versions of his officer report, he acknowledged that

the only circumstance justifying his use of force was J.B.’s failure to comply with

loud verbal commands—either to exit the vehicle or to place his hands on the

dashboard. But a reasonable jury could have found that Brown either did not give

any verbal commands to J.B. or that he did not give J.B. the opportunity to comply

with his commands before using severe force. J.B. also was charged with resisting

arrest without violence. This is not a serious crime for which severe force is

warranted. See Stephens, 852 F.3d at 1321–22. And no evidence at trial suggested

that a reasonable officer in Brown’s position would have suspected that J.B.—a

mere passenger—was responsible for the more serious crimes related to the high-

speed chase or for using the suspect vehicle to hit a police officer. A reasonable

juror could also have found that an officer in Brown’s position, knowing that J.B.


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had only been a passenger in the suspect vehicle and observing J.B. sitting

passively in his seat with his seatbelt fastened, would not have perceived him as an

immediate threat. And the evidence was also sufficient for the jury to find that a

reasonable officer in Brown’s position would not have assumed that J.B. was

“actively resisting arrest or attempting to evade arrest by flight.” Id. at 1321

(quoting Graham, 490 U.S. at 396). Brown began using force against J.B. within

seconds of arriving at the suspect vehicle. The government also presented evidence

that Brown gave no orders that J.B. could possibly have followed before Brown

began using force. [In this circumstance, the jury had more than a sufficient basis

to find that it was unreasonable for Brown to use punches, kicks, and a Taser

against a nonresisting passenger like J.B.

      Before moving on, we address one point about the government’s position on

Brown’s use of force. In its brief and at oral argument, the government implied that

because the testimony at trial suggested that Boynton’s policies on the use of force

reflected the constitutional reasonableness standard, the jury could have inferred

that Brown’s violations of those policies necessarily amounted to a constitutional

violation. But the district court correctly instructed the jury that an officer’s

violation of a police department’s policies on the use of force would not by itself

establish that his actions amounted to excessive force. We reject the proposition


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that we can ever substitute a police department’s standards on the use of force for

the constitutional standard—even when the policies attempt to mirror the

constitutional reasonableness standard. Although the jury may consider a

department’s policies as relevant evidence, district courts should follow the

example here of using limiting instructions to prevent the jury from conflating a

violation of departmental policy with a violation of the Constitution.

              b. Brown Willfully Used Excessive Force Against J.B.

      To establish that a defendant acted “willfully” in committing a deprivation

of rights under color of law, the government must prove that the defendant “act[ed]

with ‘a specific intent to deprive a person of a federal right made definite by

decision or other rule of law,’ or ‘in open defiance or in reckless disregard of a

constitutional requirement which has been made specific and definite.’” House,

684 F.3d at 1199–1200 (quoting Screws v. United States, 325 U.S. 91, 103, 105

(1945) (plurality opinion)). A defendant need not have been “thinking in

constitutional terms,” so long as his “aim was not to enforce local law but to

deprive a citizen of a right and that right was protected by the Constitution.”

Screws, 325 U.S. at 106 (plurality opinion). And “the defendant’s subsequent

conduct may be considered if it supports a reasonable inference as to his prior




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intent.” House, 684 F.3d at 1200 (alterations adopted) (citation and internal

quotation marks omitted).

      The evidence here was more than sufficient for a reasonable jury to find that

Brown acted in open defiance or reckless disregard of constitutional limitations on

the use of force. Brown’s training in the use of force supports the jury’s finding of

willfulness. See United States v. Rodella, 804 F.3d 1317, 1337–38 (10th Cir. 2015)

(holding that evidence of training a defendant-officer received on pursuit of

suspect vehicles was relevant to whether he acted willfully in unlawfully arresting

the driver and subjecting him to excessive force). Sergeant Aiken testified that

Brown’s actions—punching, kicking, and employing a Taser against a passively

resisting passenger—clearly violated the department’s policies on the use of force,

and he testified that Brown had been most recently trained on the use of force five

months before the incident. The bare fact that an officer’s actions violated his

training on the use of force will not always suggest that his actions were willful—

after all, officers must frequently make “split-second judgments” in “tense,

uncertain, and rapidly evolving” circumstances. Graham, 490 U.S. at 397. But

where an officer’s actions so obviously violate his training on the use of force, a

jury may infer that the violation was willful. Here, the jury could have found that,

based on his training, it would have been obvious to Brown that he lacked the


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authority to repeatedly punch and kick a passenger who presented at most passive

resistance.

      The jury also could have inferred Brown’s willfulness from his filing of

police reports that sought to cover up his actions. His initial officer report, filed

only hours after the incident, omitted that he kicked and punched J.B. before using

the Taser. Only after viewing the helicopter video did Brown admit to having

struck J.B. several times with a closed fist. And Brown never admitted to having

kicked J.B. even in his later reports. Based on Brown’s misleading officer reports,

the jury reasonably could have inferred that Brown was conscious that his actions

were unlawful, but recklessly disregarded that fact in choosing to assault J.B. Cf.

House, 684 F.3d at 1202 (concluding that an officer’s repeated “attempt[s] to

conceal his actions by making false statements in his incident reports” supported

jury’s finding that he acted willfully when he seized motorist in violation of the

Fourth Amendment).

      Brown responds that the shortcomings of his officer report do not reflect a

consciousness of guilt because he checked a box in his use-of-force report stating

that he used “blows with hands/fists/feet.” But Boynton officers are trained—and

indeed, the use-of-force form itself states—that use-of-force reports cannot

substitute for recording the extent of the use of force in the officer report. And the


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evidence at trial established that an officer in Brown’s position would understand

that failing to record the use of punches or kicks in an officer report would be a

violation of departmental policy that could warrant formal discipline. So the jury

could have reasonably found that Brown’s omissions from his officer report were

deliberate and reflected a knowledge that his actions were unlawful.

     2. The District Court Did Not Abuse Its Discretion in Denying Brown’s
                              Motion for a New Trial.

      Federal Rule of Criminal Procedure 33 provides that “[u]pon the defendant’s

motion, the court may vacate any judgment and grant a new trial if the interest of

justice so requires.” Fed. R. Crim. P. 33(a). “When considering a motion for a new

trial, the district court may weigh the evidence and consider the credibility of the

witnesses.” United States v. Albury, 782 F.3d 1285, 1295 (11th Cir. 2015) (citation

and internal quotation marks omitted). A motion for a new trial based on the

weight of the evidence is “not favored” and is reserved for “really exceptional

cases.” Martinez, 763 F.2d at 1313 (citation and internal quotation marks omitted).

For a new trial to be warranted, “[t]he evidence must preponderate heavily against

the verdict, such that it would be a miscarriage of justice to let the verdict stand.”

Id. Although the standards for granting a motion for acquittal, see Fed. R. Crim. P.

29, and a motion for a new trial under Rule 33 are similar, they are not identical. A

district court may grant a new trial based on the weight of the evidence even if the

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evidence is sufficient to convict in the “rare” “case in which the evidence of guilt

although legally sufficient is thin and marked by uncertainties and discrepancies.”

Butcher v. United States, 368 F.3d 1290, 1297 n.4 (11th Cir. 2004) (citation and

internal quotation marks omitted); accord Martinez, 763 F.2d at 1313 (“[C]ourts

have granted new trial motions based on weight of the evidence only where the

credibility of the government’s witnesses had been impeached and the

government’s case had been marked by uncertainties and discrepancies.”).

      Brown does not argue that the government’s case against him was “marked

by uncertainties and discrepancies” or that the credibility of the government’s

witnesses was impeached at trial. Instead, he stresses that the inconsistency

between his conviction and the acquittals of his codefendants warrants a new trial,

but this argument is a nonstarter. Brown concedes that inconsistency in a jury’s

verdict concerning several defendants—convicting some but acquitting others—is

not a ground for acquittal under Rule 29. See United States v. Wright, 63 F.3d

1067, 1074 (11th Cir. 1995); see also 3 Charles A. Wright et al., Federal Practice

and Procedure § 514 (4th ed. Apr. 2019 update) (“[T]he jury need not act

rationally in regard to verdicts of acquittal and conviction on several counts or

concerning several defendants.” (emphasis added)). And we have explained that

where a defendant’s “arguments regarding . . . inconsistent verdicts [fail] in the


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context of his motion for judgment of acquittal[,] [i]t follows a fortiori that those

arguments fail under the abuse of discretion standard we employ” in evaluating a

motion for a new trial. Albury, 782 F.3d at 1295. Because Brown’s argument about

inconsistent jury verdicts would fail to justify his acquittal, the district court did

not abuse its discretion in rejecting his motion for a new trial on that basis.

      Brown also argues that the newly discovered enhanced video of the incident

should have been considered when deciding whether “the interests of justice”

require a new trial for a verdict against the weight of the evidence, but we disagree.

A district court considering whether a verdict is against the weight of the evidence

“sits as a ‘thirteenth juror,’” Tibbs v. Florida, 457 U.S. 31, 42 (1982); see also

United States v. Sinclair, 438 F.2d 50, 51 n.1 (5th Cir. 1971), and evaluates the

evidence presented at trial. Evidence that the defendant either knew about during

trial but failed to introduce or discovered only after trial falls outside the scope of

such motions. When a defendant seeks a new trial based on evidence discovered

after trial, a motion under Rule 33(b)(1) provides the only vehicle for considering

it, and a defendant must satisfy the requirements of that Rule. See Thompson, 422

F.3d at 1294. And when, as here, a defendant expressly concedes that the new

evidence does not constitute “newly discovered evidence” within the meaning of

Rule 33(b)(1), he may not disguise what is in substance a legally insufficient


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motion as one challenging whether the verdict is against the weight of the

evidence. So the district court correctly disregarded the enhanced video in

evaluating Brown’s motion for a new trial.

      In any case, the video would not have made a difference. Brown argues that

the video would reveal that “[t]he sole factor which set [his] actions apart from the

[actions] of his acquitted co-defendants”—that Brown allegedly “held a gun in his

hand when administering hard force”—never occurred, as the video purportedly

establishes that Brown reholstered his weapon. Assuming that Brown is right about

the video, there were other obvious factors that set Brown’s use of force apart from

that of his codefendants. For example, Brown was the only one to kick or use his

Taser against J.B. As the district court concluded, Brown’s immediate and total use

of hard force in response to J.B.’s passive resistance justified his conviction

regardless of whether he had a gun in his hand when he punched J.B. So even if the

district court erred in failing to consider the enhanced video, the error was

harmless.

                       B. The Issues Related to Antico’s Trial.

      We divide our discussion of the issues related to Antico’s trial in three parts.

First, we explain that sufficient evidence supports Antico’s conviction. Second, we

explain that Antico invited any error in giving an Allen charge. Third, we explain

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that the district court did not abuse its discretion in declining to investigate juror

misconduct or to compel the disclosure of the contents of a juror’s post-trial

conversation, and that the cumulative effect of any errors did not deny Antico a fair

trial.

                 1. Sufficient Evidence Supports Antico’s Conviction.

         To convict Antico of obstruction of justice, 18 U.S.C. § 1512(b)(3), the

government had to prove that Antico (1) “knowingly and willfully . . . engage[d] in

misleading conduct toward another person, (2) with the intent to hinder, delay or

prevent the communication of information to a federal official, (3) about the

commission or the possible commission of a federal crime.” United States v.

Ronda, 455 F.3d 1273, 1284 (11th Cir. 2006) (citation and internal quotation

marks omitted). “[M]isleading conduct” is defined to include “knowingly making a

false statement” and “intentionally omitting information from a statement and

thereby causing a portion of such statement to be misleading, or intentionally

concealing a material fact, and thereby creating a false impression by such

statement.” 18 U.S.C. § 1515(a)(3)(A)–(B).

         The government identifies three types of false statements or omissions that

support Antico’s conviction: (1) his repeated statements falsely vouching for the

credibility of his officers and stating that he had never had an issue with “these


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guys not being accurate” in their officer reports; (2) his omission of the fact that

several of his subordinates’ officer reports that were submitted and validated as

complete did not fully or accurately reflect the force they used against J.B. and

B.H.; (3) and Antico’s omission of the fact that he returned eleven officer reports

over a span of 29 hours so that his subordinates could change them to be consistent

with the video.

      Antico does not deny that his statements or omissions were, in fact,

misleading to the Bureau agents, but he argues that they reflect only that he “could

not remember or recall exact events.” He challenges both whether he knowingly

engaged in misleading conduct and whether any misstatement or omissions were

made with the intent to hinder the investigation of the police officers’ assault.

      There was ample evidence for a reasonable juror to find that Antico’s

statements or omissions reflected an intentional effort to mislead. A reasonable

jury could infer Antico’s intent from the stark difference in his memory about the

incident on the one hand and his inability to recall basic facts about his

subordinates’ officer reports on the other. The transcript of Antico’s account of the

incident covers over fifty pages and includes minute details, such as the direction

of travel, the streets, and the officers involved in the high-speed chase, as well the

precise words said by many of the officers. That Antico’s memory was excellent in


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recalling the details of the incident but failed him utterly when his interview turned

to the accuracy of his subordinates’ officer reports about that incident supports an

inference that his claims of forgetfulness were false.

      A reasonable jury could also have found that an officer in Antico’s position

would be unlikely to forget the shortcomings in his subordinates’ initial officer

reports. Multiple witnesses testified that Boynton officers are trained that they

must include in their reports all relevant details about their use of force, including

whether they punched or kicked a suspect. The testimony also established that the

failure to follow this policy could warrant formal discipline, and Antico admitted

that if he caught his subordinates omitting details about striking or kicking a

suspect, it would be something for Internal Affairs to investigate. Indeed, Sergeant

Aiken testified that an officer omitting major details from his report would be a

highly unusual event, as he was not aware of any other instance of it happening in

the thirteen years he had served as training sergeant. Aiken further testified that it

would be unusual for a supervisor to send back an officer report multiple times for

revisions for a failure to include important details about the use of force. And

Aiken testified that if a shift officer like Antico sent back multiple officer reports

for several rounds of revisions, he would remember having done so. Considering

that Antico rejected eleven officer reports from five officers in the 29 hours after


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he saw the video based on the failure to adequately document the use of punches

and kicks, the jury reasonably could have inferred that this would have been such a

memorable event for Antico that it was implausible that he would have forgotten it.

      Consider too that the nature of the incident itself would put an officer in

Antico’s position on alert that his subordinates’ officer reports would ultimately

become important and would render him unlikely to forget key details about them.

Antico referred to the assault as “the most critical incident I’ve been involved in”

and the one that involved the “most force.” The brutality of the officers’ actions

captured on video is, as one witness described it, “stunn[ing].” Chief Katz affirmed

that he had “a reaction” to the video, and explained that he “was concerned about

the content of the video” and that he “had a great deal of questions” about the

officers’ actions. The pilot of the police helicopter that filmed the incident,

Michael Musto, testified that “[t]he video doesn’t look good” because of “[t]he

extended time it took to get [the vehicle’s occupants] in custody with the kicking

and punching,” and he explained that this was the first time in his career he had

ever forwarded a video to a supervisor to review. A reasonable juror hearing this

testimony and seeing the video could have inferred that Antico would have

understood the possible ramifications for his department and his subordinates from




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the incident and from the reports filed about it, and that he would not forget the

major details surrounding the reports only six months later.

      Antico responds that the jury could not determine that he intended to

mislead the Bureau because, during his interview, he repeatedly qualified his

statements with caveats like, “I don’t remember” or “I’d have to check.” But the

jury was entitled to find that Antico’s use of these qualifying phrases was

misleading because he was not communicating everything that he knew.

      Antico also highlights three circumstances—that he was not present at the

scene of the incident, that he went on vacation for a week afterward, and that he

was interviewed six months after the event—to suggest that he simply forgot many

of the relevant details. To be sure, a jury could have inferred from these details that

Antico’s memory was to blame. But we will not vacate a conviction simply

because the government did not “disprove every reasonable hypothesis of

innocence”; we instead defer to the jury’s rational selection between “reasonable

constructions of the evidence.” United States v. Mieres-Borges, 919 F.2d 652, 656

(11th Cir. 1990) (citation and internal quotation marks omitted). Because a

reasonable jury could have found that Antico’s statements and omissions were

knowingly misleading and intended to hinder the Bureau’s investigation, we reject

Antico’s invitation to second-guess the jury.


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              2. Antico Invited any Error in Giving the Allen Charge.

      Antico next contends that the district court plainly erred by giving a

modified Allen charge taken directly from our 2016 Pattern Jury Instructions. See

Eleventh Circuit Pattern Jury Instructions (Criminal Cases), Trial Instruction 5, at

685–86 (2016). He argues that the modified Allen charge is unduly coercive

because it mentions that another trial will “serve to increase the costs to both

sides.” He also argues that certain other language from the modified Allen charge

is “confusing and causes undue pressure on the jury” to reach a unanimous verdict.

      The doctrine of invited error bars Antico’s challenge to the Allen charge. “It

is a cardinal rule of appellate review that a party may not challenge as error a

ruling or other trial proceeding invited by that party.” United States v. Love, 449

F.3d 1154, 1157 (11th Cir. 2006) (alteration adopted) (citation and internal

quotation marks omitted). It was Antico who first proposed that the district court

should give a “modified Allen charge” if the jury deadlocked a second time. After

the jury deadlocked a second time, Antico again affirmed that he wanted the

district court to give “T-5, the modified Allen charge,” referring to the instruction

from our 2016 Pattern Jury Instructions. Because Antico invited the court to give

the modified Allen charge, he is precluded from challenging it as error now.

Although the government has not argued that this was invited error, an appellate

court may apply the invited-error doctrine sua sponte. See Harden v. United States,
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688 F.2d 1025, 1032 n.7 (5th Cir. Unit B 1982) (explaining that appellate courts

may raise waiver sua sponte); see also United States v. Mancera-Perez, 505 F.3d

1054, 1057 & n.3 (10th Cir. 2007) (explaining that invited error is a kind of waiver

that an appellate court may raise sua sponte).

      Even if Antico did not invite the error, his challenge has no merit. The

modified Allen charge from our 2016 Pattern Jury Instructions is nearly identical to

that from our 2010 Pattern Jury Instructions, with the exception that the 2016

version omits the words “obviously” and “only” from language from the 2010

version stating “[o]bviously, another trial would only increase the cost to both

sides.” Compare Eleventh Circuit Pattern Jury Instructions (Criminal Cases), Trial

Instruction 5, at 639–40 (2010), with Eleventh Circuit Pattern Jury Instructions

(Criminal Cases), Trial Instruction 5, at 685–86 (2016). And we have “repeatedly”

held that the 2010 Pattern Jury Instructions’ Allen charge “is appropriate and not

coercive.” United States v. Oscar, 877 F.3d 1270, 1286 (11th Cir. 2017) (citing

United States v. Bush, 727 F.3d 1308, 1320 (11th Cir. 2013); Woodard, 531 F.3d at

1364). Because the 2016 modified Allen charge is substantially similar to the 2010

version, we are bound by our prior precedent to uphold its language as not

inherently coercive. See United States v. Rey, 811 F.2d 1453, 1460 (11th Cir. 1987)

(explaining that we were “bound by precedent” to affirm the use of an Allen charge


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where we had previously “upheld an Allen charge that employed very similar

language” (italics added)). So we alternatively conclude that the district court

committed no error, plain or otherwise, in giving the modified Allen charge.

      3. The District Court Did Not Abuse Its Discretion in Denying Antico’s
                  Post-Verdict Motions Regarding Juror Misconduct.
      Federal Rule of Evidence 606(b) provides that “[d]uring an inquiry into the

validity of a verdict or indictment, a juror may not testify about any statement

made or incident that occurred during the jury’s deliberations; the effect of

anything on that juror’s or another juror’s vote; or any juror’s mental processes

concerning the verdict or indictment.” Fed. R. Evid. 606(b)(1). The Rule adds,

“The court may not receive a juror’s affidavit or evidence of a juror’s statement on

these matters.” Id. This rule reflects the “centuries old” principle—also known as

the “no-impeachment rule”—that after a jury has reached its verdict “it will not

later be called into question based on the comments or conclusions they expressed

during deliberations.” Pena-Rodriguez, 137 S. Ct. at 861. Rule 606(b)

“[a]cknowledg[es] the sanctity of jury deliberations and Lord Mansfield’s rule that

‘a witness shall not be heard to allege his own turpitude,’ [and] it seeks to reach an

accommodation between preserving trial by jury and ensuring a just result in each

case.” 3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §

606.04 (Mark S. Brodin ed., Matthew Bender 2d ed. 1997).

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      There are four exceptions to the no-impeachment rule. Rule 606(b) provides

for three: a juror may testify about (1) whether “extraneous prejudicial information

was improperly brought to the jury’s attention”; (2) whether “an outside influence

was improperly brought to bear on any juror”; and (3) whether “a mistake was

made in entering the verdict on the verdict form.” Fed. R. Evid. 606(b)(2)(A)–(C).

The Supreme Court has also held that a fourth exception applies when “a juror

makes a clear statement that indicates he or she relied on racial stereotypes or

animus to convict a criminal defendant.” Pena-Rodriguez, 137 S. Ct. at 869.

      Outside these four exceptions, Rule 606(b) prohibits inquiry into a wide

range of alleged misconduct. This prohibition includes whether a juror

“misunderstood or disregarded evidence, misunderstood or disregarded the judge’s

instructions, was confused about the legal significance of the jury’s answers to

special interrogatories or the consequences of the verdict, thought that the jury

would be kept out indefinitely until agreement was reached, considered an election

of the defendant not to take the stand, believed that recommending mercy would

avoid the death penalty, was overcome by weariness or unsound arguments of

other jurors, or by a desire to return home.” 3 Weinstein & Berger, Weinstein’s

Federal Evidence § 606.04 (footnotes omitted) (collecting decisions). And outside

of racial bias, Rule 606(b) prohibits inquiries into alleged improper motives or


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prejudices of the jury. See Martinez v. Food City, Inc., 658 F.2d 369, 373–74 (5th

Cir. Unit A 1981) (explaining that “juror testimony regarding the possible

subjective prejudices or improper motives of individual jurors has been held to be

within [Rule 606(b)’s prohibition], rather than within the exception for ‘extraneous

influences,’” as “[t]he proper time to discover such prejudices is when the jury is

being selected and p[ere]mptory challenges are available to the attorney” (quoting

United States v. Duzac, 622 F.2d 911, 913 (5th Cir. 1980)); 3 Weinstein & Berger,

Weinstein’s Federal Evidence § 606.04 (explaining that Rule 606(b) “bars

questions about jurors’ prejudice”).

      “No per se rule requires the trial court to investigate the internal workings of

the jury whenever a defendant asserts juror misconduct.” United States v. Cuthel,

903 F.2d 1381, 1382–83 (11th Cir. 1990). For example, where a party alleges that

the jury was subject to extrinsic influence, we have held that a district court has a

duty to investigate “only when the party alleging misconduct makes an adequate

showing of extrinsic influence to overcome the presumption of jury impartiality.”

Id. at 1383 (quoting United States v. Barshov, 733 F.2d 842, 851 (11th Cir. 1984));

accord United States v. Cousins, 842 F.2d 1245, 1247 (11th Cir. 1988). This

standard requires that the defendant “do more than speculate; he must show clear,

strong, substantial and incontrovertible evidence that a specific, nonspeculative


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impropriety has occurred.” Cuthel, 903 F.2d at 1383 (alteration adopted) (citation

and internal quotation marks omitted). Where the evidence presented to the district

court fails to establish that an impropriety occurred that falls within any of the

exceptions to the no-impeachment rule, the district court is justified in declining to

hold a hearing or further inquire into the matter. See Venske, 296 F.3d at 1290

(holding that the district court did not abuse its discretion in declining to hold a

hearing where all but two allegedly improper statements mentioned in an affidavit

concerned the jury’s deliberative process or mental impressions, and where the two

statements did not establish that the jury was influenced by the extrinsic facts they

related).

      Antico argues that the district court abused its discretion by failing to

interview a juror who alleged a variety of misconduct, but we disagree. The juror

first alleged that some jurors were biased because they “used their prior

misconceptions about police officers and their feeling of someone needing to be

held accountable, where there wasn’t one bit of evidence showing [that Antico]

was guilty,” and that some jurors made their minds up before deliberating. But we

have explained that “juror conduct during deliberations, such as . . . statements

made during deliberations, including statements calling into question a juror’s

objectivity,” are “internal matters” that are inadmissible under Rule 606(b). United


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States v. Foster, 878 F.3d 1297, 1310 (11th Cir. 2018) (alteration omitted) (citation

and internal quotation marks omitted); see also Martinez, 658 F.2d at 373. Because

allegations that some jurors had improper motives or that they failed to

meaningfully deliberate do not fall within the limited exceptions to the no-

impeachment rule, the district court did not abuse its discretion in declining to

investigate them further.

      The juror also alleged that the three holdout jurors were bullied into voting

guilty, and she specifically complained that some jurors made fun of her and

discounted her opinion because she allegedly had a “crush” on Antico. But we

agree with the district court that this alleged bullying is “nothing more than [a]

typical feature[] of jury deliberations,” Foster, 878 F.3d at 1310, and that it falls

squarely within the no-impeachment rule. And although Antico argues that the

“crush” comment suggests gender bias by one juror against the first juror, there are

multiple problems with Antico’s theory that this allegation required further

inquiry: neither this Court nor the Supreme Court has ever suggested that gender

bias warrants an exception to the no-impeachment rule; we have never held that

bias of one juror against another juror constitutes an exceptional circumstance to

the no-impeachment rule; and the statement suggesting that the juror had a crush

does not present “clear, strong, substantial and incontrovertible evidence” that any


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juror actually harbored gender bias against Antico. Cuthel, 903 F.2d at 1383

(citation and internal quotation marks omitted). So because the evidence presented

to the district court failed to allege any impropriety that could possibly fall within

an exception to the no-impeachment rule, the district court did not abuse its

discretion in declining to hold a hearing or otherwise interview the juror. See

Venske, 296 F.3d at 1290.

      Antico also briefly argues that the statement that “someone had to be held

accountable” suggests “that the jury was aware of the publicized external

information that two officers previously tried were acquitted so this jury decided to

find Antico guilty.” Although Antico argues this was “clear evidence” that the

jury’s verdict was based upon “outside influences,” that suggestion is an

overstatement. All that the juror’s email suggests is that some jurors felt that the

incident captured on video warranted accountability for those involved, including

for Antico. And Antico’s argument does not make much sense because, assuming

the jurors had heard about the results of the earlier joint trial, they would have

known that Michael Brown was convicted of deprivation of rights under color of

law, so they would not need to search for “someone” to convict for the offense. In

short, Antico has not pointed to “clear, strong, substantial and incontrovertible

evidence” that the jury considered extraneous prejudicial information, Cuthel, 903


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F.2d at 1383, so the district court did not abuse its discretion in failing to

investigate it further.

       Antico also argues that the district court abused its discretion in declining to

compel the government to disclose the contents of a conversation that a second

juror had with the spouse of an Assistant United States Attorney. Antico argues

that the contents of this conversation are akin to Brady material and should have

been disclosed so that he could determine whether any juror misconduct occurred,

but we again disagree.

       Antico cites no authority, nor are we aware of any, supporting the notion that

we should extend Brady to mandate the disclosure of post-verdict evidence that

might shed light on the nature of the jury’s deliberations. Antico cites Rule 606(b),

but even under the standard for that rule, the district court would abuse its

discretion in failing to further investigate the matter only if Antico pointed to

“clear, strong, substantial and incontrovertible evidence” that impropriety falling

within one of the exceptions occurred. Considering that Antico presented no

evidence other than the facts mentioned above, the district court correctly ruled

that Antico “fail[ed] to present any evidence that impropriety has occurred,” as his

motions “simply state[d] that a juror spoke with the wife of an [Assistant United

States Attorney] about his or her experience as a juror.”


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      Antico also argues that the cumulative effect of the errors made his trial

fundamentally unfair, but no error occurred at his trial. So he cannot establish

cumulative error. See House, 684 F.3d at 1210 (“[W]here there is no error or only a

single error, there can be no cumulative error.”).

    C. Brown and Antico Must Be Resentenced Because It Is Unclear Whether,
          in Calculating Their Guideline Ranges, the District Court Made a
                      Factual Finding Infected by Legal Error.

      The government appeals the sentences of Brown and Antico on the ground

that the district court erred in declining to use aggravated assault as the underlying

offense in calculating their guideline ranges. Section 2H1.1 of the Sentencing

Guidelines provides the standard for determining the base offense level for

Brown’s conviction for deprivation of rights under color of law, 18 U.S.C. § 242:

      (a)    Base Offense Level (Apply the Greatest):

             (1) the offense level from the offense guideline applicable to any
             underlying offense;
             ...
             (3) 10, if the offense involved (A) the use or threat of force
             against a person . . .

U.S.S.G. § 2H1.1(a). The Guidelines also provide that the base offense level for

Antico’s conviction for obstruction of justice is the greater of 14, id. § 2J1.2(a), or,

if the offense involved obstructing the investigation or prosecution of a criminal

offense, the offense level calculated after applying a cross-reference with respect to

the criminal offense, id. §§ 2J1.2(c), 2H1.1.
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      The probation officer determined that the underlying offense that produced

the highest base offense level for Brown’s and Antico’s guideline calculations was

aggravated assault, which was based on Brown’s use of a Taser against J.B. See id.

§§ 2A2.2, 2H1.1(a)(1), 2J1.2(c)(1), 2X3.1. The Guidelines define aggravated

assault as, among other things, “a felonious assault that involved . . . a dangerous

weapon with intent to cause bodily injury (i.e., not merely to frighten) with that

weapon.” Id. § 2A2.2 cmt. n.1. The Guidelines further define “bodily injury” as

“any significant injury; e.g., an injury that is painful and obvious, or is of a type for

which medical attention ordinarily would be sought,” id. § 1B1.1 cmt. n.1(B), and

a “dangerous weapon” as “an instrument capable of inflicting death or serious

bodily injury,” id. § 1B1.1 cmt. n.1(E). Both parties agree that a Taser is a

“dangerous weapon,” so the remaining questions are whether Brown used a Taser

with the “intent to cause bodily injury” and whether the Taser was “involved” in a

“felonious assault.”

      The district court determined that Brown’s use of a Taser did not amount to

aggravated assault because there was “[s]ome evidence” suggesting that Brown

used the Taser “to gain compliance rather than to cause bodily injury.” At Brown’s

sentencing, the district court mentioned and apparently credited Officer Brown’s

and Officer Ryan’s officer reports stating that J.B. had refused loud verbal


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commands before Brown used his Taser against him and that J.B. had been

reaching toward the center console at that time. And the district court explained

that it interpreted Officer Monteith’s testimony to suggest that he thought that

Brown had not used his Taser for the purpose of causing bodily injury. So the

district court ruled that “[t]here [was] insufficient evidence to find by a

preponderance of the evidence that Brown’s intent in using the Taser was to cause

bodily injury, rather than to gain control over J.B.” [At Antico’s sentencing, the

district court relied on this factual finding in ruling that Antico’s underlying

offense was not aggravated assault.

      As an initial matter, the government contends that the district court’s finding

of intent is “more akin to a legal interpretation” of the Guidelines than a factual

finding and that it “warrants no deference from this Court.” But we agree with our

sister circuits that we review a finding regarding whether a defendant acted with

the intent to cause bodily injury for purposes of section 2A2.2 for clear error. See

United States v. White, 354 F.3d 841, 844 (8th Cir. 2004) (“We review the district

court’s factual findings regarding [the defendant’s] intended use of [a dangerous

weapon for purposes of section 2A2.2] for clear error.”); United States v. Morris,

131 F.3d 1136, 1138 (5th Cir. 1997) (applying a clear-error standard to a finding

that the defendant had an intent to cause bodily injury for purposes of section


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2A2.2). This review is consistent with our ordinary treatment of a determination of

intent as a factual finding. See, e.g., United States v. Bohannon, 476 F.3d 1246,

1251 (11th Cir. 2007) (reviewing a finding of intent for clear error); United States

v. Vallejo, 297 F.3d 1154, 1162 (11th Cir. 2002) (same).

      The government argues that the district court erred in determining that

Brown lacked an intent to cause bodily injury because a Taser is “designed” to

inflict bodily harm, so any intentional use of a Taser against a suspect

automatically satisfies the requirement for “intent to cause bodily injury.” This

argument ignores that it is a question of fact for the district court to determine

whether a dangerous weapon is “involved” in a “felonious assault.” U.S.S.G.

§ 2A2.2 cmt. n.1. Here, for example, the district court could have found that

Brown’s use of punches and kicks was part of a felonious assault but that the

assault ended by the time Brown used the Taser, at which time he legitimately used

the Taser to gain control over J.B. In that case, the Taser would not have been

“involved” in a felonious assault, even if its application was close in time to the

assault. So even if the government is correct that an officer’s intentional use of a

Taser against a suspect automatically entails “the intent to cause bodily injury”—

which we do not decide—that fact would not mean that the district court erred in

declining to use aggravated assault as the underlying offense.


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       The government also contends that the district court erred in failing to apply

an objective test to determine Brown’s intent, but this argument is unconvincing.

Even if we assume the government is correct that an objective test applies, the

district court cited evidence—the accounts of Officers Brown and Ryan—that

could support an inference that Brown used the Taser in response to J.B.’s refusal

to exit the vehicle and to his having reached toward the center console. As the

government admits, the question whether Brown’s use of the Taser was lawful

turns on whether “that use of force [was] reasonable under the circumstances.” So

based on the district court’s possible view of the evidence judged under an

objective standard of what a reasonable officer would do in Brown’s place, one

could view the district court’s ruling as stating simply that there was an insufficient

basis to find that Brown’s employment of the Taser was unreasonable.

      The government next argues that the district court clearly erred in ruling that

Brown’s intention to bring J.B. under control excluded the possibility that he also

intended to cause bodily injury. Brown responds that the government’s “dual intent

theory”—that Brown could have intended both to cause bodily injury and to gain

control of J.B. at the time he used his Taser—is subject to plain-error review

because it was not raised below. The government replies that we should review this

argument de novo because it is a new argument brought in support of a preserved


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claim of error. We have held that to preserve an objection to a sentencing

determination, a party “must raise that point in such clear and simple language that

the trial court may not misunderstand it.” United States v. Massey, 443 F.3d 814,

819 (11th Cir. 2006) (citation and internal quotation marks omitted). But once a

party has preserved an issue, it may “make any argument in support of that claim;

parties are not limited to the precise arguments they made below.” Yee v. City of

Escondido, 503 U.S. 519, 534 (1992); see also Hi-Tech Pharm., Inc. v. HBS Int’l

Corp., 910 F.3d 1186, 1194 (11th Cir. 2018) (“Parties can most assuredly waive or

forfeit positions and issues on appeal, but not individual arguments.” (alterations

adopted) (citation and internal quotation marks omitted)). Because the government

preserved the specific ground for review implicated by its dual-intent theory—

namely, that Brown had the intent to cause bodily injury at the time he used a

Taser—it may offer new arguments to support that position. See Black v.

Wigington, 811 F.3d 1259, 1268 (11th Cir. 2016) (“Although new claims or issues

may not be raised, new arguments relating to preserved claims may be reviewed on

appeal.” (quoting Pugliese v. Pukka Dev., Inc., 550 F.3d 1299, 1304 n.3 (11th Cir.

2008)).

      We also agree with the government that the record leaves doubt about

whether the factual finding was infected by a legal error. The district court


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repeatedly phrased its finding as being that the government failed to establish that

“Brown’s intent in using the Taser was to cause bodily injury, rather than to gain

control over J.B.” This language reflected Brown’s “single-intent” theory that

Brown’s intent was either to cause bodily injury or to gain control, but not both.

Because a defendant can have more than one intent and an officer can both intend

to control a suspect and also intend to cause him injury, it is legal error to conclude

that the presence of some evidence of an intent to control necessarily excludes the

possibility that the defendant also acted with the intent to injure. Based on this

record, we have no way of knowing whether the district court actually applied this

erroneous “single-intent” standard in finding that Brown lacked the requisite intent.

      If a district court applies an incorrect legal standard in reaching a factual

conclusion, the resulting finding is not insulated by the clear-error standard. See

Holton v. City of Thomasville Sch. Dist., 490 F.3d 1257, 1261 (11th Cir. 2007)

(“The clear-error standard governs unless the district court ‘applies an incorrect

legal standard which taints or infects its findings of facts.’” (quoting NAACP,

Jacksonville Branch v. Duval Cty. Sch., 273 F.3d 960, 965 (11th Cir. 2001)). And

vacatur and remand are warranted when “we cannot say” whether an incorrect

legal standard “affect[ed] or influence[d] the district court’s [factual] conclusion.”

United States v. Kendrick, 22 F.3d 1066, 1069 (11th Cir. 1994). Because we are


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not sure that the finding that Brown lacked the intent to cause bodily injury is free

from legal error, and this finding caused the district court to decline to apply

aggravated assault as the underlying offense, we must vacate Brown’s sentence

and remand for resentencing. Because the district court relied on this same factual

finding in ruling that Antico’s underlying offense was not aggravated assault, we

also vacate Antico’s sentence and remand for resentencing.

                                IV. CONCLUSION
      We AFFIRM the convictions of Brown and Antico, VACATE their

sentences, and REMAND for resentencing.




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