United States v. Messerlian, Harry H., in 85-5323. United States of America v. Wolkowski, Henry F., in 86-5345

OPINION OF THE COURT

This appeal arises from the convictions and sentences of New Jersey State Troopers Harry H. Messerlian and Henry F. Wol-kowski, in connection with the death of arrestee Joseph P. Topolosky, while in police custody, following a traffic accident on the New Jersey Turnpike in July, 1982. For the reasons set forth below, we will affirm defendants-appellants’ convictions and sentences on all counts.

I.

A. PROCEDURAL HISTORY

On July 31, 1982, Joseph P. Topolosky was pronounced dead on arrival at the St. James Hospital in Newark, New Jersey, following his arrest for driving while intoxicated. Shortly thereafter, New Jersey state authorities initiated an investigation into the events that led to Topolosky’s death. On November 24,1982, a grand jury in Union County, New Jersey, returned a one count indictment that charged Trooper Messerlian with second-degree manslaughter. See N.J.Stat.Ann. § 2C:ll-4(b)(l) (West 1982). Following the discovery of new evidence, however, the matter was submitted to a second Union County grand jury, which voted not to return an indictment against Messerlian. Consequently, the original manslaughter indictment was dismissed on April 28,1983.

On July 25, 1985, following an investigation by the United States Department of Justice, a federal grand jury returned a multiple count indictment against Messerli-an, charging him with violations of 18 U.S.C. § 242 (1982) 1 (deprivation of civil rights), 18 U.S.C. §§ 371 and 1503 (1982) 2 (conspiracy to obstruct justice) and 18 U.S.C. § 1623 (1982) 3 (false declarations). The same indictment charged appellant Henry F. Wolkowski with conduct in violation of 18 U.S.C. § 371 (conspiracy to ob *781 struct justice) and 18 U.S.C. § 1623 (false declarations). Specifically, the indictment charged that Messerlian, acting under color of law, fatally struck Joseph P. Topolosky and thereby willfully deprived Topolosky of his constitutional right to liberty without due process of law in violation of 18 U.S.C. § 242. The indictment further charged that Messerlian and Wolkowski, together with State Troopers George J. Mangione and Brian Slattery, 4 conspired in violation of 18 U.S.C. § 1503 (1982) to cover up the alleged assault and thereby prevent state and federal investigation of the circumstances surrounding Topolosky’s death.

Following a three month trial before the Honorable Anne E. Thompson, 5 the jury returned a unanimous verdict of guilty on all counts against Messerlian. Wolkowski was found guilty of conspiring to obstruct justice and not guilty of making false declarations. Subsequently, both appellants filed motions for judgments of acquittal, or alternatively, for new trials. After a hearing, the district court entered an order on April 29, 1986, denying all post-trial motions. On May 13, 1986, the district court sentenced Messerlian to concurrent terms of ten years imprisonment on Count 1, three years imprisonment on Count 2 and three years imprisonment on Count 3. Wolkowski was sentenced to one year imprisonment on his conviction for conspiring to obstruct justice. On May 12, 1986, the district court granted and denied motions by Wolkowski and Messerlian, respectively, for bail pending appeal. On June 16, 1986, this Court vacated the district court’s order denying Messerlian bail pending appeal. United States v. Messerlian, 793 F.2d 94 (3d Cir.1986). These appeals followed and were consolidated by order of this Court dated August 13, 1986.

Messerlian advances three principal arguments on appeal. First, Messerlian maintains that the district court failed to instruct the jury properly on the crucial element of specific intent under section 242. Second, Messerlian argues that Count 2 of the indictment is legally insufficient because it charges appellants with a conspiracy to obstruct federal proceedings that had not commenced at the time the alleged conspiracy was formed. Third, Messerlian contends that the government’s failure to disclose exculpatory expert medical opinion requires reversal of his conviction, and that the district court erred in denying his motion for a new trial based on newly discovered evidence. This evidence consisted of the testimony of Dr. Marvin Aronson, Medical Examiner for the City of Philadelphia. See infra subsection C.

Appellant Wolkowski joins in Messerli-an’s second and third contentions. In addition, Wolkowski makes two related arguments regarding his conspiracy conviction. First, Wolkowski argues that the evidence at trial was insufficient to- support a reasonable jury verdict that he conspired to obstruct justice. Alternatively, Wolkowski maintains that the district court erred in denying his motion for a new trial because the jury’s verdict is against the weight of the evidence and constitutes a miscarriage of justice. 6

Due to the nature of appellants’ arguments, we turn now to a detailed account of the facts as developed at trial.

B. FACTS

1. The Constitutional Deprivation

On July 30, 1982, between 10:30 and 10:45 p.m., Joseph P. Topolosky parked his *782 van — occupied by himself and his two children, then ages four and five — in the left lane of the New Jersey Turnpike. A car driven by Nelson Velazquez collided with the rear of the van when the vehicle immediately in front of the car suddenly swerved to the right. Velazquez and the passengers in his car — Luis Guzman, Abi-mael Fontanez and Gloria Ruiz — got out of the car and went to the van to determine whether its occupants were hurt.

Upon approaching the van, Fontanez observed the driver resting his head on his arm. Fontanez roused Topolosky and asked him if he was all right. Topolosky raised his head and responded that he was fine. See Supplemental Appendix (“SA”) at 13. Velazquez smelled alcohol on Topo-losky and believed him to be drunk. Id. at 232, 260. Velazquez, Fontanez and Guzman observed no cuts, bruises, bleeding or injuries of any kind on Topolosky’s face. 7 Id. at 13, 232, 264-65. They therefore returned to their car to examine the damage and to wait for the police.

Within ten to twenty minutes, New Jersey State Police Troopers Messerlian and Kenneth McClelland arrived at the scene of the accident. The troopers talked initially with the four occupants of the Velazquez vehicle and determined that no one was seriously injured. The troopers then approached the van and attempted to wake Topolosky, who appeared to be asleep. After smelling alcohol on Topolosky’s breath, Messerlian and McClelland pulled him out of the van, placed him under arrest, cuffed his hands behind his back, escorted him back to the cruiser and placed him in the rear seat. As Topolosky walked to the cruiser, Velazquez, Ruiz, and Fontanez observed that he had no facial injuries. See SA at 26, 76, 236.

After placing Topolosky into the cruiser, Trooper McClelland attended to Topolo-sky’s children while Trooper Messerlian began setting flares to alert oncoming traffic to the accident. Thereafter, Topolosky, while lying handcuffed in the back seat of the cruiser, kicked out the left rear window. See SA at 28, 238, 267. In response to this disturbance, Messerlian, according to Velazquez and Fontanez, entered the cruiser and struck Topolosky three or four times on his face and neck with a flashlight. Id. at 28-29, 250-53; see also id. at 493, 495-96 (testimony of Gary McWhorter). Ruiz testified that she observed Mes-serlian strike Topolosky in the head but could not identify the object used. Id. at 80. She did see a flashlight in Messerlian’s hand, however, immediately before he entered the cruiser. Id. at 78-79. Guzman testified that he saw Messerlian with “an object, black and long” in his hand, and that his hand was “going up and down” while he was in the back seat of the cruiser. Id. at 269-70. Also, Velazquez, Fonta-nez and Guzman each testified to hearing the Topolosky children cry out “[djon’t hit my father, don’t hit my father.” Id. at 33, 242, 271.

Following the episode in the cruiser, Messerlian returned to interview the accident victims. During this time, Velazquez, Fontanez and Ruiz each went back to the cruiser, where they saw Topolosky lying motionless in the back seat with blood running from his mouth and face. See SA at 34, 881, 241. After completing their interviews, the troopers radioed ahead to the state police barracks, informing the senior trooper that they were returning to the station with a drunk driver. Id. at 163. When Messerlian arrived at the state police barracks, 8 Topolosky’s “face was puffy. There was a slight amount of blood on his mouth, and he appeared to be unconscious.” Id. at 100 (testimony of Sergeant Nicholas Sheyka, acting supervisor, Newark state police barracks, July 30, 1982). Due to the condition of Topolosky, the su *783 pervising trooper, Sergeant Sheyka, instructed Messerlian to remove the handcuffs so that Topolosky could be taken to a hospital. Sergeant Sheyka proceeded upstairs to call an ambulance. Id. Thereafter, Topolosky was taken to St. James Hospital, where at 12:10 a.m., Dr. Lawrence Dalglish, the attending physician in the emergency room, pronounced him dead on arrival. Id. at 137.

At trial, the “central fact issue was whether Messerlian hit Topolosky with a flashlight and caused his death or whether Topolosky’s death was caused by the car accident, or by Topolosky hitting his head on the car door or some object in the car.” Defendant-Appellant Harry H. Messerli-an’s Brief on Appeal (“Messerlian’s Brief on Appeal”) at 7. In his examination report, Dr. Dalglish had written: “Pupils dilated, glazed cornea, left eye swollen shut. Blood oozing from mouth, and a marked DOA.” SA at 141. At trial, Dr. Dalglish further described Topolosky’s external injuries. Specifically, he stated that the left side of Topolosky’s face was swollen, bruised and discolored; his lip was lacerated; his face and nostrils were covered with some blood; the left side of his neck was bruised and swollen; the left eye was surrounded l?y little hemorrhages; his pupils did not react to light; his blood pressure, pulse and respiration were zero; and his body was lifeless. See id. at 137-38, 140-41, 148. Based on these observations, Dr. Dalglish stated his opinion that the injuries to Topolosky’s face and neck were consistent with having been beaten with a flashlight. Id. at 151-52. He further stated his opinion that those injuries were not self-inflicted. Id. at 147.

On July 31, 1982, Dr. Rudolf Platt, Assistant State Medical Examiner for the State of New Jersey, performed the initial autopsy on Topolosky. His examination revealed swelling, contusions, and lacerations to the left side of the neck and face accompanied by considerable hemorrhage beneath these injuries. See SA at 289-90, 295-99. An internal examination of the skull revealed a subarachnoid hematoma 9 at the base of the brain. Id. at 295-97, 299-304. Dr. Platt also noted that the left side of the complete upper denture worn by Topolosky was missing. Id. at 294. On August 4, 1982, a second autopsy was performed by Doctors Platt and Stefan Epstein. In addition to the earlier findings of Dr. Platt, the second autopsy revealed a fracture of the maxilla, a bone extending from the lower eyelid down to the gum, on the left side of Topolosky’s face. See id. at 311-17.

On September 30, 1982, Dr. Charles Hirsch, a forensic neuro-pathologist, dissected and examined Topolosky’s brain and similarly concluded that the cause of Topo-losky’s death was a traumatic subarachnoid hematoma. SA at 357-59. Both Drs. Hirsh and Platt indicated that, in their medical opinion, the manner of Topolosky’s death was a homicide, the result of external, blunt blows or impacts to the head and neck. SA at 335, 361-63. In so concluding, each expressly ruled out the possibility that the fatal injuries were the result of natural causes, self-inflicted injury or the automobile collision. 10 See id. at 335-36, 362-65.

*784 In addition to the eyewitness testimony* and medical evidence, the government introduced evidence at trial to show that state troopers receive training regarding the impact that blows to particular parts of the body have, and to shov/ that troopers are aware that blows to the neck and face area constitute deadly force. See SA at 169-72, 277-78, 281-82. Troopers are instructed to use such force only when a person cannot be controlled by a lesser degree of force or when that person is likely to endanger the life of, or cause serious bodily harm to, another. Id. at 280.

In his defense, Messerlian presented testimony by several state troopers that on three prior occasions — in August 1968, March 1978 and September 1979 — Topolo-sky had exhibited violent, self-destructive behavior while intoxicated and in police custody. 11 Messerlian also presented seven character witnesses from the New Jersey State Police who testified that, during his approximately ten year tenure as a state trooper, Messerlian had a reputation as a quiet, peaceful and non-violent individual. See SA at 396-402.

Messerlian’s medical evidence consisted of testimony by two medical experts, Dr. Leslie Lukash, Chief Medical Examiner for Nassau County, New York, and Dr. Richard Lindenberg. Each of these witnesses testified that, although he agreed with the government’s experts that Topolosky’s death was caused by a subarachnoid hema-toma, it was his opinion that the manner of Topolosky’s death could not be conclusively determined. Dr. Lukash opined that Topo-losky may have died naturally as the result of a ruptured aneurysm or accidentally as the result of the automobile collision. Dr. Lukash also indicated that some of Topolo-sky’s injuries were consistent with his alleged thrashing about in the back seat of the cruiser. He could not, however, rule out the possibility that the fracture to To-polosky’s face was the result of blows with a flashlight. See SA at 420-21. Dr. Lin-denberg also opined that Topolosky died naturally as the result of a ruptured aneurysm or accidentally from the impact of the collision. Additionally, he noted that Topo-losky might have died from hypertension due to his thrashing about in the cruiser. Finally, Dr. Lindenberg unequivocally maintained that Topolosky’s fatal injuries could not have resulted from external blows with a flashlight. 12 See SA at 464-65, 474-75, 482.

2. The Conspiracy and Perjury Counts

Count 2 of the indictment charged Mes-serlian and Wolkowski, along with Troopers Slattery and Mangione, see supra note 4, with conspiracy to obstruct the due administration of justice. Specifically, the government argued that appellants conspired to prevent all law enforcement agencies from learning that Messerlian had assaulted Topolosky. It charged that the following overt acts occurred in furtherance of the conspiracy: (1) Messerlian, Wolkow-ski and others “agreed not to report the fact that Messerlian had assaulted Topolo-sky;” (2) Messerlian, Wolkowski and others “failed to provide routine information” to the hospital concerning the circumstances of Topolosky’s death; (3) Wolkowski, Mangione and Slattery knowingly omitted accounts of the alleged assault from statements prepared during interviews with Velazquez, Guzman and Fontanez; (4) Mes-serlian and others agreed to fabricate a *785 story attributing Topolosky’s death to self-inflicted injury on a K-55 radar unit and a briefcase; (5) Messerlian testified falsely before the second Union County grand jury; (6) Wolkowski, Mangione and Slat-tery made false declarations before the federal grand jury; and (7) Messerlian falsely testified before the federal grand jury as to whether he had assaulted Topolosky.

At trial the government introduced evidence that, after the hospital notified the Newark state police barracks that Topolo-sky was dead, Sergeant Wolkowski was called at home almost immediately, and that he arrived at the barracks shortly thereafter to initiate and supervise an internal investigation into the circumstances of Topolosky’s death. Additionally, the jury heard testimony that, on the night of Topolosky’s death, Wolkowski was the chief investigative officer at the barracks for approximately four hours. SA at 112-14, 164, 181. During this time, although Wolkowski separately interviewed both Messerlian and McClelland, he made no notes of either interview and failed to file a report. 13 Moreover, Wolkowski failed to provide information to the hospital concerning the circumstances surrounding Topolo-sky’s death. SA at 161-62. Based on this evidence, the government argued that, “once Wolkowski spoke to Messerlian and his partner, he did nothing [with respect to the investigation into Topolosky’s death] ... other than inspect the police cruiser and answer some telephone calls.” Brief for the United States, Appeal No. 86-5345, at 8.

At approximately 4:40 a.m., over three hours after Wolkowski’s arrival at the barracks at 1:00 a.m., Lieutenant Herbert Orth, the acting unit supervisor of the Major Crimes Unit (“MCU”), 14 took over the investigation of Topolosky’s death. After MCU detectives left the Newark barracks, however, Wolkowski was left in charge of interviewing three of the occupants of the Velazquez vehicle in order to ascertain how Topolosky died. Wolkowski personally interviewed Velazquez and briefed Troopers Mangione and Slattery on how to conduct the interviews of Guzman and Fontanez. See SA at 214-25. Velazquez, Guzman and Fontanez each testified that they told Wol-kowski, Mangione and Slattery that they had witnessed one of the troopers assault Topolosky on the turnpike. None of the interview reports, however, mentioned the assault or made any reference to Topolo-sky’s physical condition. 15 See Brief for United States, Appeal No. 86-5345, at 8-9. In addition, both Velazquez and Fontanez testified that, after they had reported the alleged assault during their interviews, they observed Wolkowski conferring with both Mangione and Slattery. 16

*786 Finally, the government introduced evidence that, notwithstanding the testimony of the eyewitnesses, Wolkowski repeatedly denied ever receiving information about the alleged assault. In two interviews conducted by Lieutenant Orth of MCU, Wol-kowski indicated that he had received no information from Velazquez concerning an assault on Topolosky, and that he had received no information from Mangione or Slattery that Guzman or Fontanez had made allegations of any wrongdoing. See SA at 199-200, 201-04, 214-25. In addition, the government introduced into evidence Wolkowski’s testimony before the federal grand jury that, during his interview of Velazquez, Velazquez never mentioned anything about a beating and that Wolkowski never specifically asked Velazquez about the fatal injuries Topolosky sustained. 17

With respect to Messerlian’s involvement in the alleged conspiracy to obstruct justice, the government argued that Messerli-an attempted throughout the investigation to mislead the authorities by offering contradictory accounts of the events on the turnpike. Specifically, the government introduced evidence that Messerlian, in his initial interview with MCU detectives, reported that, while he was setting flares to alert oncoming traffic to the accident, he observed Topolosky banging his head against the windows in the cruiser. Mes-serlian also stated that he observed Topolo-sky kick out the left rear window of the cruiser. Messerlian stated that at this point — after Topolosky kicked out the window — he entered the front seat of the cruiser and grabbed Topolosky, who then fell asleep. See SA at 205-06.

In his accident report filed within a week of the incident, Messerlian reasserted that he had observed Topolosky banging his head on the left rear window of the police cruiser. Messerlian noted, however, that the disturbance stopped once he reached the vehicle. There was no reference in this report to Messerlian’s having entered the cruiser in response to the disturbance. SA at 87.

In November 1982, over three months after the incident, Messerlian was interviewed by Lieutenant Orth. During this interview, Messerlian, for the first time, *787 indicated that on the night of Topolosky’s death there was a K-55 radar unit and a briefcase in the back seat of the police cruiser. See SA at 216. Subsequently, when testifying before the second Union County grand jury, Messerlian indicated that he reentered the cruiser before the window was broken, observed Topolosky repeatedly banging his head against the briefcase and radar unit and attempted to prevent him from hurting himself. Id. at 88-96. Finally, Messerlian unequivocally stated before the federal grand jury that he never struck Topolosky either with his fists or with his flashlight. Id. at 349-51.

In addition to highlighting the inconsistencies in Messerlian’s accounts of the events on the turnpike, the government offered evidence that overwhelmingly established that on the night of the alleged assault there was no briefcase or radar unit in Messerlian’s cruiser. Nine witnesses, including the occupants of the Velazquez vehicle, the ambulance crew that transported Topolosky to the hospital and several state troopers involved in the subsequent investigation testified that they did not see a briefcase or a radar unit in the back seat of the cruiser on the night of the accident. See SA at 36 (testimony of Fon-tanez), 84 (testimony of Ruiz), 102 (testimony of Sergeant Sheyka), 126-27 (testimony of Miles Kelly, ambulance crew member), 135 (testimony of John Couto, ambulance crew member), 190 (federal grand jury testimony of Sergeant Wolkowski), 193 (testimony of Sergeant MacArthur). Moreover, the daily activity log for Messerlian’s cruiser indicated that no radar unit had been assigned to him on the night Topolosky sustained his fatal injuries. See id. at 115-16, 120-23, 167.

To counter the government’s evidence relating to the alleged conspiracy, Wolkowski introduced evidence suggesting that his involvement in the investigation of Topolo-sky’s death was fortuitous and that he merely acted within the structured chain of command of the New Jersey State Police. He introduced evidence in an attempt to prove that he was called into the investigation solely because he lived approximately ten minutes away from the Newark barracks and was the detective most frequently summoned in emergency situations. Sergeant Sheyka, the senior trooper on duty on the night of the accident, testified that, after learning that Topolosky was pronounced dead on arrival at the hospital, the first persons that he notified were Lieutenant Russell MacArthur, the duty operations officer, and Sergeant First Class Weber, the station commander. See SA at 105-06. According to Sheyka, Wolkowski was notified “to make sure [Sheyka] ... covered all the bases on who to notify, what to do.” Id. at 106. Sheyka also expressed his understanding that the duty officer, Lieutenant MacArthur, “[would] make [the] ... decisions] on what is going to transpire, not Detective Sergeant Wol-kowski.” Id. at 113. Wolkowski also introduced evidence that he was not required to make a report of his initial interviews with Messerlian and McClelland unless directed to do so by MCU detectives.

With respect to the government’s allegation that Wolkowski orchestrated the taking of false statements, MCU detective Gary McWhorter testified that he instructed Wolkowski to take the statements from the three witnesses and to use troopers from the barracks to assist him. See Jt. App. at 86a. According to McWhorter, Wolkowski did not volunteer to take the statements, id. at 85a, but was asked to do so as an accommodation to MCU. See id. at 86a. In addition, Sergeant Anthony Si-monetti, the shift supervisor who replaced Sergeant Sheyka, testified that he independently selected Troopers Mangione and Slattery to assist in conducting the witness interviews and did not inform Wolkowski until after they had been selected. See id. at 87a. Wolkowski also introduced the testimony of several police officers who were present at the barracks at the time the statements were taken that they did not observe Wolkowski leave the interview room or confer with Mangione or Slattery during the course of the interview. See Wolkowski’s Brief on Appeal at 18-20.

Finally, Wolkowski presented seven character witnesses who testified to Wolkow-ski’s reputation for honesty and trustwor *788 thiness. See Jt. App. at 73a, 74a, 74.2a, 76a, 77a, 80a-81a; SA at 485-86.

C. MOTION FOR A NEW TRIAL

Following the return of the jury verdicts, a new issue arose involving allegations of prosecutorial misconduct during the course of the litigation. 18 The testimony of Dr. Aronson, Medical Examiner for the City of Philadelphia, raised the question whether the prosecution concealed from Messerlian and Wolkowski exculpatory evidence that could have aided them in their defense. Dr. Ar-onson testified that, after a request by the prosecution, he reviewed the circumstances surrounding the death of Topolosky. After conducting his review, he orally advised Assistant United States Attorney Anne Singer of his opinion that Topolosky’s death resulted from the automobile accident and not from a beating. Id. at 1495.

Based on Dr. Aronson’s testimony, Mes-serlian and Wolkowski moved for judgments of acquittal or for new trials. Alternatively, they requested a hearing to determine whether the government had violated the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which requires disclosure of exculpatory evidence to the defense, or whether the testimony of Dr. Aronson constituted new evidence sufficient to warrant a new trial under Federal Rule of Criminal Procedure 33. After a hearing on the motions, the district court concluded that Dr. Aronson’s testimony was not credible, and that, at any rate, his testimony was cumulative and would not have altered the jury’s verdict. Consequently, the district court rejected defendants-appellants’ Brady arguments, Messerlian, 633 F.Supp. at 1500-04, and their contention that Dr. Aronson’s testimony constituted new evidence sufficient to warrant a new trial. Id. at 1504-10.

The district court also rejected Wolkow-ski and Messerlian’s claims that there was insufficient evidence to sustain their convictions. Messerlian, 633 F.Supp. at 1513, 1515. Wolkowski’s claims that the failure to grant his motion for severance was fatal error, that the instruction on the conspiracy count was improper, and that a new trial was warranted based on the weight of the evidence, were similarly rejected. Id. at 1512-15. Accordingly, the district court concluded that Messerlian and Wolkowski received a fair trial and that all post-trial motions must be denied. Id. at 1515.

II.

We turn now to appellants’ contentions on appeal. We shall consider first those claims specifically related to Messerlian’s appeal from his conviction of violating thé civil rights of Joseph Topolosky. Next, we shall consider those claims common to both Messerlian’s and Wolkowski’s appeals. Finally, we shall consider those claims peculiar to Wolkowski’s appeal from his conviction of conspiracy to obstruct justice.

A. SPECIFIC INTENT ELEMENT OF § 242

Messerlian’s primary contention on appeal is that the district court improperly instructed the jury on the crucial element of specific intent under § 242. In particular, Messerlian argues that the district court’s instructions “permitted the jury to convict Messerlian on the basis of mere excessive force.” Messerlian’s Brief on Appeal at 12-13. In this regard, Messerli-an admonishes that “[i]f th[e] [district court’s] charge is correct, then every intentional use of force by a police officer [that] is later deemed to be excessive violates § 242.” Defendant-Appellant Harry H. Messerlian’s Reply Brief (“Messerlian’s Reply Brief”) at 8. Additionally, Messerlian argues that the evidence adduced at trial was insufficient to support a jury verdict beyond a reasonable doubt that he possessed the requisite specific intent under § 242.

A district court’s duty to provide the jury with guidelines so that it may *789 draw appropriate conclusions from the evidence is satisfied by “a clear articulation of the relevant legal criteria,” United States v. Goldblatt, 813 F.2d 619, 623 (3d Cir.1987), and the determination of the particular language to be employed when charging the jury is within the sound discretion of the district court. See id. In assessing the propriety of the district court’s instructions, we must “ ‘determine whether the charge, taken as a whole and viewed in the light of the evidence, fairly and adequately submits the issues in the case to the jury [without confusing or misleading the jurors].’ ” United States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1195 (3d Cir.1984) (citations omitted), cert. denied, 470 U.S. 1029, 105 S.Ct. 1397, 84 L.Ed.2d 785 (1985). If the jury charge is adequate, we must consider Messerlian’s claim that the evidence is nonetheless insufficient to support his conviction. In addressing this claim, our task is to “view[ ] the evidence in the light most favorable to the prosecution,” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), and to sustain the verdict if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (original emphasis); accord United States v. Martorano, 709 F.2d 863, 866 (3d Cir.) (“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether a jury could reasonably infer from the evidence that the defendant is guilty of the offense with which he is charged.”), cert. denied, 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983).

1. The Jury Charge

Although Messerlian generally contests the adequacy of the district court’s instructions to the jury on the issue of specific intent, he also selects three paragraphs of the jury charge and argues that “[v]iewed together, these paragraphs ... convey that if Messerlian intentionally struck Topolo-sky with his flashlight, and if this conduct was excessive under state law, then the jury was entitled to find Messerlian guilty of a § 242 violation.” Messerlian’s Brief on Appeal at 21-22. We disagree.

The challenged provisions of the district court’s charge read as follows:

You may find that the defendant Messer-lian acted with the requisite specific intent, even if you find he had no real familiarity with the Constitution, or with a particular constitutional right involved, provided you find that the defendant willfully and consciously did the act which deprived the person of his constitutional rights.

Jt. App. at 796a-97a.

If you find that Mr. Messerlian knew what he was doing, and that he intended to do what he was doing, and if you find that what he did constituted a deprivation of a constitutional right, then you may conclude the defendant Messerlian acted with the specific intent to deprive the victim of a constitutional right.

Id. at 797a.

Obviously, not every striking by a police officer or use of force by a police officer would constitute a violation of the constitutional right of a citizen. It is only when it is excessive, unreasonable, and unnecessary, and beyond that which is authorized under state law, for such officers to use.

Id. at 799a.

Essentially, Messerlian’s objection to the jury charge is two-fold. First, Messerlian contends that the above challenged provisions of the jury charge inaccurately characterize the applicable law in that they authorize the jury to make a post hoc determination whether the force employed by Messerlian was excessive, which, if found, could properly support a conviction under § 242. Second, Messerlian maintains that, consistent with the government’s theory and evidence at trial, the district court was required to instruct the jury that, in order to convict, it must find that Messerlian possessed the specific intent to punish To-polosky. Although we agree with Messer-lian that a conviction based solely on the mere use of excessive force would be contrary to the law, we disagree with his assertion that the challenged provisions of the court’s instructions or, indeed, that the *790 instructions as a whole, have the effect of sanctioning such a conviction. Further, we reject Messerlian’s contention that the district court was required to instruct the jury that the only basis upon which it could convict was the intent to inflict summary punishment. In any event, we find that the district court properly charged the jury on the issue of summary punishment.

In Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), the Supreme Court rendered its seminal decision defining the specific intent required to support a criminal prosecution under the federal civil rights law. 19 The Court held that “the specific intent required by the Act is an intent to deprive a person of a right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them.” Id. at 104, 65 S.Ct. at 1037. It is beyond dispute that the “right to personal security,” Youngberg v. Romeo, 4 57 U.S. 307, 315, 102 S.Ct. 2452, 2458, 73 L.Ed.2d 28 (1982), is such a right. 20 See United States v. Dise, 763 F.2d 586, 588 (3d Cir.) (“personal security and freedom from bodily restraint, have always been protected by the due process clause of the fourteenth amendment”), cert. denied, 474 U.S. 982, 106 S.Ct. 388, 88 L.Ed.2d 341 (1985).

Elaborating on the requirement of specific intent, the Court in Screws identified two bases for a proper § 242 conviction. First, the Court indicated that proof of an intentional deprivation of a person’s constitutional rights could sustain a conviction under § 242. In this regard, the Court noted that

[t]he fact that ... [a] defendant^ ] may not have been thinking in constitutional terms is not material where the[] aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution. When they so act they at least act in reckless disregard of constitutional prohibitions or guarantees.

Screws, 325 U.S. at 106, 65 S.Ct. at 1037-38. Second, the Court observed that “those who decide to take the law into their own hands and act as prosecutor, jury, judge, and executioner plainly act to deprive a prisoner of the trial [that] due process of law guarantees him [or her].” Id. Where proof of such intent to inflict summary punishment exists, a conviction under § 242 is proper.

We have reviewed the instructions of the district court as a whole and find that they comport with the legal standard set forth in Screws. Moreover, viewing the challenged instructions in isolation, we find that the district court accurately instructed the jurors on the governing law. Specifically, the first provision attacked by Messerlian merely summarizes the holding in Screws that the defendant need not be thinking in constitutional terms to violate the statute. Nor does the district court’s reference to willful and conscious action render the charge defective. The district court carefully defined for the jury the term “willfulness” as requiring proof of an act “done voluntarily and intentionally, and with the specific intent to do something [that] the law forbids.” Jt. App. at 796a. Thus, the challenged passage did not permit the jurors to convict Messerlian solely on the basis of a conscious assault. See Dise, 763 F.2d at 591 (approving a similar instruction).

Messerlian’s objection to the second quoted passage from the district court’s charge represents an inartful attempt at deception. As it appears in the district court’s actual charge to the jury, that passage precedes a brief recess in the proceed *791 ings and merely operates to summarize the court's lengthy instructions to the jury up to that point. In particular, that paragraph, read in context, instructed the jury that they could convict only if they found that Ivlesserlian deprived Topolosky of a constitutional right and that Messerlian knew what he was doing was a violation of the law.

Finally, as pointed out by the government, the last passage challenged by Mes-serlian "accurately describes what constitutes a constitutional violation. It does not address the issue of specific intent at all." Brief for the United States at 40. In other words, the district court merely informed the jury about when the use of force by a police officer rises to the level of a constitutional violation. The question whether the officer intentionally exerted such force knowing it to be unlawful is not addressed in this passage.

We find that the district court's instructions did not permit or encourage the jury to convict Messerlian solely on the basis of an intent to strike. Our decision today is reinforced by a prior decision of this Court approving instructions virtually identical to those challenged by Messerlian. United States v. Dise, 763 F.2d 586 (3d Cir.), cert. denied, 474 U.S. 982, 106 S.Ct. 388, 88 L.Ed.2d 341 (1985). We find Messerlian's attempts to distinguish Dise unpersuasive.

Messerlian also challenges the district court's jury charge on the ground that it failed to instruct the jury that a finding of specific intent to inflict summary punishment was necessary in order to convict. Messerlian bases his argument in part on his interpretation of the government's evidence and on a statement by the district court that "the evidence adduced in the Government's case could allow the jury to find beyond a reasonable doubt that Messerlian administered `a physical beating as punishment for allegedly breaking the law....'" Jt. App. at 360a (quoting United States v. Delerme,