United States v. Piekarsky

687 F.3d 134

UNITED STATES of America

v.Brandon PIEKARSKY, Appellant.

United States of America

v.Derrick Donchak, Appellant.

Nos. 11–1567, 11–1568.

United States Court of Appeals, Third Circuit.

Argued on Jan. 12, 2012.

Opinion Filed: June 18, 2012.

James A. Swetz, Esq. (Argued), Cramer, Swetz & McManus, P.C., Stroudsburg, PA, for Appellant Brandon Piekarsky.

William A. Fetterhoff, Esq. (Argued), Fetterhoff and Zilli, Harrisburg, PA, for Appellant Derrick Donchak.

Thomas E. Perez, Assistant Attorney General, Jessica Dunsay Silver, Angela M. Miller (Argued), U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for Appellee.

Before: McKEE, Chief Judge, FUENTES and JORDAN, Circuit Judges.

OPINION OF THE COURT

FUENTES, Circuit Judge:

Brandon Piekarsky and Derrick Donchak were convicted in federal court for the brutal beating and eventual death of Luis Ramirez, a resident of the Defendants' town. The Defendants were charged with criminal violation of the Fair Housing Act, 42 U.S.C. § 3631, which penalizes actions taken against an individual on account of his race, color or national origin, and with the specific intent to intimidate the victim or others like him from exercising their right to housing free of discrimination. On appeal, they argue that the District Court erred in instructing the jury that the Government was not required to prove that issues of race and occupancy were the Defendants' only motivations in beating Ramirez. The Defendants also raise other issues, including whether double jeopardy barred their federal trial and whether the evidence was sufficient to support a conviction under § 3631. For the reasons that follow, we will affirm.

I.

A.

This case arises out of an exceedingly disturbing series of events that culminated in the beating and eventual death of Luis Ramirez, a resident of Shenandoah, Pennsylvania, on July 12, 2008. Donchak and Piekarsky, then eighteen and sixteen years old, respectively, were also residents of Shenandoah. On the night of July 12, 2008, they were accompanied by a group of other young Shenandoah residents: Brian Scully, Ben Lawson, Colin Walsh and Josh Redmond, all of whom played high school football with, and were close friends of, the Defendants. Scully, Walsh and Redmond were key witnesses for the federal prosecution in this case.

At trial, the testimony revealed that members of this group regularly made derogatory comments about Hispanic or Latino individuals, and frequently voiced their displeasure with the presence of such individuals in Shenandoah. The friends often referred to such individuals as “Mexicans” because they considered it to be a derogatory term. (Append. 221.) Scully testified that he, Donchak and Walsh would frequently discuss the increasing Hispanic population in Shenandoah, and would say things like “Get them out of here,” or “[I]t's not good for our [t]own.” ( Id.) Lawson testified that these sentiments were shared by many people in his high school class. (Append. 211–12.) Walsh testified that Donchak, in particular, was very vocal in these sentiments, and that he “really didn't like Hispanic people.” (Append. 379.) He also stated that Donchak often wore a t-shirt that said “Border Patrol,” and drove through town blasting “The White Man Marches On”—a white supremacist anthem that glorifies the use of violence against minorities—from the speakers of his pickup truck. (Append. 379, 381.)

On the night of Ramirez's beating, Piekarsky, Donchak, and their friends encounteredLuis Ramirez and became engaged in a verbal disagreement with him. That verbal disagreement escalated to a physical altercation which resulted in the savage beating of Ramirez by Donchak, Piekarsky and other members of the group as he lay on the ground. Ramirez died two days later as a result of the injuries he sustained.

Prior to that encounter, the group had been partying and drinking malt liquor near a creek in Shenandoah for two or more hours. They then attended a neighborhood Polish American block party, but were asked to leave shortly after they arrived, when Piekarsky became involved in a verbal altercation with another partygoer and had to be physically restrained by his friends.

It was after they left the party, while walking through a neighborhood park, that the group encountered Ramirez, who was accompanied by Roxanne Rector. Scully made a comment to Rector to the effect that it was too late for her to be out. Ramirez, who was sitting nearby on a park swing, stood up and said something to the group in Spanish. Scully responded to Ramirez, saying, “This is Shenandoah. This is America. Go back to Mexico.” (Append. 149.) From there, the situation escalated. Ramirez responded with more words, and took out his cell phone to call someone. Donchak called Ramirez a “Spic,” (Append. 228) and Walsh told Ramirez to “Get the fuck out of here” (Append. 387, 639). Ramirez, at Rector's insistence, began walking backwards out of the park and away from the group.

When Ramirez reached the street, he turned his back to the group and continued to walk away. Piekarsky, joined by Walsh and Scully, ran after Ramirez. Piekarsky and Ramirez began fighting, and Piekarsky eventually picked Ramirez up and threw him to the ground. Piekarsky apparently attempted to kick Ramirez while he was down, but tripped and fell over. By the time Ramirez stood up, Donchak had run over from the park and begun repeatedly punching Ramirez in the face, calling him a “fucking Spic.” (Append. 389–90.) Ramirez eventually fell to the ground, at which point the rest of the group joined in on the beating.

At this point, the group was positioned across the street from the park, in front of a home. Donchak, Walsh, Piekarsky and Scully stood over Ramirez and kicked him repeatedly. Walsh testified that he kicked Ramirez in the lower body “just once,” but that “everybody else was kicking him in the upper part, in his head and his chest and his upper body.” (Append. 391.)

The kicking stopped when Victor Garcia—Ramirez's friend, whom he had called on his cell phone at the beginning of the altercation—arrived with his then-fiancée Arielle, whom the Defendants knew from school. As Garcia approached, the group broke up and began walking down the street. One member of the group called at Garcia, screaming, “Fucking Mexican.” (Append. 545–546.) Donchak, who was still standing nearby, threw a few more punches at Ramirez and, as he walked away, turned and again said, “Fuck you Spic.” Walsh addressed Arielle and said, “This isn't racial.” (Append. 392.) Scully turned and said, “Go home, you Mexican motherfucker.” (Append. 233–234.) Apparently provoked by these comments, Ramirez—who was standing at this point—charged at Scully, and the two began fighting. Walsh ran up and punched Ramirez in the face, causing him to fall backwards “like a brick,” slamming his head against the concrete. (Append. 527.) Then, as Ramirez lay on the ground, motionless, Piekarsky ran up and kicked Ramirez in the side of the head. Arielle testified that the kick delivered was so forceful that it made a “crack” sound, and caused Ramirez's head to fly to the side.¹ (Append. 488.)

Witnesses testified that, immediately after Piekarsky kicked him in the head, Ramirez began convulsing and making “snoring” sounds. (Append. 488.) The Defendants and their friends fled the scene at this point. One member of the group—either Piekarsky or Scully—yelled, “Tell your fucking Mexican friends to get the fuck out of Shenandoah or you're going to be fucking laying next to him.” (Append. 325.) Someone called 9–1–1, but Ramirez was unconscious and unresponsive when medical help arrived. By that time, his head was misshapen, and his face was swollen. He was taken by helicopter to a nearby trauma center. Two days later, he died.

In the days after the accident, the Defendants and their friends hatched a plan to conceal what had happened during the fight with Ramirez. That plan appears to have included the Defendants, their friends, Piekarsky's mother, and three officers of the Shenandoah Police Department—Officer Jason Hayes, Lt. William Moyer and Chief of Police Matthew Nestor,² all of whom were friends of the Piekarsky family. Witnesses testified at trial that, in the hours immediately following the incident, both Donchak and Piekarsky spoke with Hayes and Moyer. The group of men who had been present at the fight also met at Donchak's home to discuss the fight. Piekarsky, who was talking with Moyer and Hayes at this time, called the group and assured them that he had told the police that the fight was not racially motivated, had only been a fight between Walsh and Ramirez, and that Walsh had acted in self defense. He also withheld the fact that he had kicked Ramirez in the head.

Piekarsky and his mother arrived at Donchak's house later than the others and told the group that they needed to “get a story.” By this time, they had learned that Ramirez would likely die from his injuries. At the same meeting, according to the testimony of Redmond and Scully, the Defendants joked about getting the name “Lupe” tattooed on their bodies, given that Ramirez was “Mexican.” (Append. 242, 302, 650.) The evidence also showed that, during this time, Piekarsky's mother was in constant contact with Hayes and Moyer, as well as Chief Nestor.

The day after the assault, Scully was interviewed by Moyer, Hayes and two detectives from the Schuylkill County District Attorney's Office. Scully testified at trial that, at this interview, he intentionally withheld information regarding the drinking the group had done the night before, the kick to Ramirez's head and the use of racial epithets. Shortly after, the group met again—this time explicitly in order to get their stories straight. The boys' parents discussed the situation in the living room, while the boys spoke in the back yard. The group agreed to tell the police that no one had kicked Ramirez and that no...