United States of America v. Arthur Sease

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0281p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA ,
Plaintiff-Appellee,
v.
ARTHUR SEASE ,
Defendant-Appellant.
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No. 09-5790
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 06-20304-001—Jon Phipps McCalla, Chief District Judge.
Argued: August 31, 2011
Decided and Filed: October 21, 2011
Before: COLE, ROGERS, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ARGUED: Robert C. Brooks, Memphis, Tennessee, for Appellant. Nathaniel S.
Pollock, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Robert C. Brooks, Memphis, Tennessee, for Appellant.
Nathaniel S. Pollock, Jessica Dunsay Silver, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
_________________
OPINION
_________________
COLE, Circuit Judge. Defendant-Appellant Arthur Sease, a former Memphis
police officer, appeals his convictions stemming from a conspiracy to stage drug buys
for the purpose of seizing drugs and money for personal gain. The jury returned guilty
verdicts against Sease on forty-four counts, including violations of 18 U.S.C. § 241
(conspiracy to deprive another of their civil rights under the color of law), § 242
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(deprivation of civil rights under the color of law), and § 1951 (robbery and extortion
under the color of official right interfering with interstate commerce), and the district
court sentenced Sease to life plus 255 years in prison. Sease challenges the sufficiency
of the evidence supporting his convictions, arguing that he did not violate the rights of
the participants in the staged drug buys because there was probable cause to arrest the
drug dealers and seize the drugs and money. We AFFIRM the convictions.
I. BACKGROUND
Arthur Sease was a Memphis police officer until he was fired by the department
in late 2004. The jury found that Sease was the principal co-conspirator in a plan to
acquire money and drugs from drug dealers for his own benefit and the benefit of his co-
conspirators. Three other Memphis police officers–Antoine Owens, Andrew Hunt, and
Alexander Johnson–as well as other associates and relatives of Sease, were involved in
the conspiracy.
Sease’s convictions are based on fourteen separate incidents. The incidents
follow the same basic plan. Sease would arrange for a drug buy or a drug sell (using
drugs taken in a previous incident) using a non-officer contact as the front person. As
the deal was occurring, either Sease or one of his fellow co-conspirator officers would
arrive at the scene to make a purported arrest and seize the money and drugs involved
in the deal. The participants would then be released, and Sease and his conspirators
would split the proceeds without reporting the incidents.
The first incident lays out most clearly the conspiracy’s general operational plan
that was followed in later incidents. In November or December 2003, Sease arranged
for his cousin to set up a drug deal with Dejuan “Nard” Brooks. Acting outside of his
assigned beat, Sease observed the deal in an unmarked police car while wearing plain
clothes. When Brooks’s SUV pulled up next to Sease’s cousin’s vehicle, Sease radioed
for Owens to come to the scene in uniform in a patrol car. Owens approached the two
vehicles with his weapon drawn and removed both Brooks and Sease’s cousin from their
vehicles. Operating under Sease’s instructions to “make it look real,” Owens roughed
up Sease’s cousin and placed him in the back of the patrol car. Meanwhile, Sease

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searched Brooks’s SUV and found a bag containing a half-kilogram of cocaine, which
Sease placed in the front seat of his unmarked vehicle. Owens also seized $11,000 from
Brooks, then released him without an arrest. Once Brooks left, Sease’s cousin was
released from Owens’s patrol car, and the drugs were dropped off at a South Memphis
house, where they were later used to set up another drug sale. Owens, Sease, and Officer
Johnson then split the $11,000 in cash.
On February 16, 2008, a federal grand jury returned a fifty-one-count indictment
against Sease. The counts and charges were:
Count 1, conspiracy against rights in violation of 18 U.S.C. § 241.
Count 2, conspiracy to possess with intent to distribute controlled substances in
violation of 21 U.S.C. § 846.
Twelve counts (Counts 3-14) of robbery and extortion under the color of law
interfering with interstate commerce in violation of 18 U.S.C. § 1951 (the “Hobbs Act”).
Eleven counts (Counts 15-25) of possession of a controlled substance in violation
of 21 U.S.C. §§ 841(a)(1) and 846.
Twelve counts (Counts 26-37) of deprivation of rights under the color of law, in
violation of 18 U.S.C. § 242.
Thirteen counts (Counts 38-50) of using a firearm in relation to the commission
of a drug trafficking crime in violation of 18 U.S.C. § 924(c).
Count 51, money laundering, in violation of 18 U.S.C. § 1956(a).
Sease was convicted on February 5, 2009, on forty-four of the fifty-one counts,
with the jury returning not guilty verdicts on Counts 12, 25, 34, 47, 50, and 51 (Count
19 was dismissed prior to trial). The district court sentenced him to life in prison plus
255 years. Sease appeals all of his convictions.

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II. ANALYSIS
A.
As a preliminary matter, the parties disagree as to the way the issues should be
framed on appeal, and thus the corresponding standard of review. Sease asserts that his
appeal is based on a challenge to the sufficiency of the evidence presented by the
government that forms the basis of the conviction. Sease argues that the stops were not
in fact violations of the civil rights of the drug dealers, and were otherwise appropriate
actions in light of his status as a police officer. Acoordingly, there is no evidence to
support his convictions, which are predicated on civil rights violations.
The government argues that Sease’s challenge is not in fact to the sufficiency of
the evidence, but rather to the jury instructions given with regard to the requirements of
legal searches and seizures under the Fourth Amendment. The jury returned a question
to the district judge during deliberations, asking “[w]e the jury, want a better
understanding of what is unreasonable search and seizure?” [sic] In the Supplemental
Instruction, the Judge instructed the jury “that seizure of money, drugs, or other personal
property solely for the personal enrichment of an individual law enforcement officer is
not a legitimate law enforcement purpose.” The government’s view is that Sease’s
Fourth Amendment argument is in reality an objection to that instruction, as it essentially
instructs the jury that Sease’s actions were per se Fourth Amendment violations.
Sease is correct that his appeal is properly understood as a challenge to the
sufficiency of the evidence. The offenses for which Sease was charged and convicted
are predicated on the illegality of the searches and seizures he conducted. For example,
Sease’s convictions under 18 U.S.C. § 242 for deprivation of rights under the color of
law require the government to show that the defendant “depriv[ed] [any person] of [the]
rights, privileges, or immunities secured or protected by the Constitution or laws of the
United States . . . .” If Sease’s actions were in fact legal, the government could not prove
the deprivation of rights element of the offense, and the convictions must be overturned.

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However, Sease did not properly preserve this argument for appeal. To properly
preserve a sufficiency of the evidence issue for appeal, the defense must make a motion
for a judgment of acquittal “at the end of the prosecution’s case-in-chief and at the close
of evidence.” United States v. Damra, 621 F.3d 474, 494 (6th Cir. 2010) (quoting
United States v. Kuehne, 547 F.3d 667, 696 (6th Cir. 2008)). Sease moved for a
judgment of acquittal at the close of the government’s case-in-chief, though it was
phrased in general terms without reference to the Fourth Amendment violations.
However, Sease did not renew his motion at the end of the government’s rebuttal
witnesses. Failing to renew the motion “constitutes a waiver of the objections to the
sufficiency of the evidence.” Damra, 621 F.3d at 494 (internal citations and quotations
omitted). Therefore, Sease’s challenge to the sufficiency of the evidence must be
rejected unless the convictions represent a “manifest miscarriage of justice.” Id.
(internal citation and quotations omitted).
Moreover, as explained in more detail below, the district court properly
concluded that the stops and searches conducted by Sease and his co-conspirators were
constitutional violations. Thus, Sease’s convictions are supported by sufficient evidence
under any standard, let alone a “manifest miscarriage of justice” standard.
B.
For sufficiency of the evidence challenges, “the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). “This is
a very heavy burden” for the convicted defendant to meet. United States v. Jones, 641
F.3d 706, 710 (6th Cir. 2011) (citation and quotations omitted). To sustain a conviction
for deprivation of rights under the color of law under 18 U.S.C. § 242 (and, by extension,
conspiracy to deprive rights under 18 U.S.C. § 241), the government must show that a
constitutional violation has occurred. Section 242 “incorporate[s] constitutional law by
reference . . .” United States v. Lanier, 520 U.S. 259, 265 (1997). Liability can only be
imposed where “in the light of the pre-existing law the unlawfulness [under the

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Constitution is] apparent.” Lanier, 520 U.S. at 271-72 (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)).
Sease argues that this case is governed by Whren v. United States, 517 U.S. 806
(1996). In Whren, plain-clothed officers made a traffic stop on an individual who
stopped for an unusually long time at a stop sign, and then dashed off at a high rate of
speed. Whren, 517 U.S. at 808. Because the officers were working a high-drug area,
they believed that individuals in the car were engaging in drug activity, but they did not
have probable cause or reasonable suspicion to make a stop on that basis. Id. at 809.
According to the petitioners in Whren, the police officers had improper motives, in the
sense that the officers conducted a stop for the purpose of investigating drug offenses for
which they did not have probable cause or reasonable suspicion, using the traffic
offenses for which they did have probable cause as a pretext. Id. at 810-12. These
improper motives, the petitioners argued, made the stop a constitutional violation. The
Supreme Court rejected this approach, citing previous case law to “foreclose any
argument that the constitutional reasonableness of traffic stops depends on the actual
motivations of the individual officers involved.” Id. at 813 (citing previously, e.g., Scott
v. United States, 436 U.S. 128, 138 (1978); United States v. Robinson, 414 U.S. 218, 221
n.1 (1973)). Instead, the Court stated that, “[w]ith rare exceptions,” the constitutionality
of the stop is based entirely on whether there is probable cause. Id. at 817.
Sease argues that, as in Whren, it is improper to consider why he and his fellow
officers made the stops in question–the only question is whether there was probable
cause to make the stops. There is no question that Sease believed that drugs and cash
were present on the persons he stopped. After all, he arranged for the drugs and cash to
be present on those individuals, and arranged for them to be in a particular location.
Thus, according to Sease, his actions did not violate the constitutional rights of his
victims, and thus his convictions must be overturned.
Whren, however, presumes that the officers are engaging in bona fide law
enforcement activities when they make the stops. However improper it may be to use
a traffic violation as a pretext to look for drugs, there is no question that making traffic

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stops and looking for drugs are valid and appropriate law enforcement activities. It is
only arguably improper if the officers lacked the required probable cause or reasonable
suspicion under the specific facts of the situation. By contrast, it is inherently improper
for officers to set up drug deals for the purpose of taking the money and drugs for
themselves, regardless of the context. Sease’s actions are improper in an entirely
different way and to an entirely different degree than the actions of the officers in
Whren.
Unlike the officers in Whren, Sease and his co-conspirators were not engaging
in bona fide law enforcement activities. Instead, they were using the appearance of law
enforcement activities as an element of their conspiracy. A key component of Sease’s
plan was to keep his activities from the attention of his superiors by not filing reports of
his stops, acting outside of his assigned precinct, and failing to inform his superiors of
the quantities of drugs and money seized. When the Memphis Police Department did
find out about at least one of Sease’s arranged stops, via a complaint from victim Reggie
Brown, they investigated the complaint and swiftly removed Sease from the police force.
Unlike the actions of officers in cases such as Whren, Sease’s conduct was thoroughly
and objectively illegal from start to finish.
In addition, while isolated quotations from Whren might support Sease’s
contentions, the rationale for the rule in Whren and related cases does not. Whren’s
holding that officer intentions are irrelevant to Fourth Amendment analysis comes out
of a concern that courts are poorly positioned to engage in post hoc analysis of officer
motivations, particularly in light of the snap decisions that law enforcement officers must
make in stressful situations. Related cases express similar concerns. Robinson, the first
case dealing with officer motives, created a per se rule that allowed for pat downs during
an arrest because of the “danger to an officer” during custodial arrests. 414 U.S. at 234.
Devenpeck v. Alford, similar to Whren, rejected the idea that an arrest must be based on
conduct “closely related” to the reasons stated by the officer when making the arrest,
since that would result in “[a]n arrest made by a knowledgeable, veteran officer [being]
valid, whereas an arrest made by a rookie in precisely the same circumstances would

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1Further, a prosecution under § 242 is distinguishable from an action under 42 U.S.C. § 1983,
where an objective finding of probable cause is an absolute defense to liability for a wrongful arrest claim.
See, e.g., Jackson v. Parker, 627 F.3d 634 (7th Cir. 2010). The purpose of a § 1983 action is to
compensate a plaintiff whose constitutional rights were violated. However, they should not be
compensated if their arrest was “reasonable.” This stands in contrast to the punitive purpose of § 242.
not.” 543 U.S. 146, 154 (2004) (emphasis in original). Brigham City v. Stuart similarly
rejected the idea that officers should make a split-second assessment of how injured the
parties are in order to determine whether they could enter a home under the “emergency
aid doctrine.” 547 U.S. 398, 406 (2006). “[A]n officer is not like a boxing (or hockey)
referee, poised to stop a bout only if it becomes too one-sided.” Id. at 406. None of
these concerns are implicated by Sease’s conduct. Sease was not faced with a complex
set of assessments when he made his stops—the stops were pre-planned and staged to
accomplish his criminal purpose.
Allowing conviction where there is no “bona fide law enforcement purpose” does
not implicate these concerns because the purposes underlying the exclusionary rule and
§ 242 are different. The holding in Whren represents a careful balance in which the
exclusionary rule’s goal of prospectively deterring police misconduct is outweighed by
law enforcement purposes where there is objective evidence of probable cause.
“[S]imply, the Fourth Amendment’s concern with ‘reasonableness’ allows certain
actions to be taken in certain circumstances, whatever the subjective intent.” Whren, 517
U.S. at 814. However, this balance shifts in the context of a § 242 prosecution. Section
242 is a punitive statute designed to punish officers who willfully violate constitutional
rights under color of law. The punitive purpose would be undermined were the court to
allow a corrupt officer to hide behind the policy goals of the exclusionary rule.
Accordingly, although for the purposes of the exclusionary rule the subjective intent of
the officer is irrelevant, in the context of a § 242 prosecution, the courts may inquire
whether the officer acted with a corrupt, personal, and pecuniary purpose.1 In addition,
unlike in the exclusionary rule context, the court must already inquire into the subjective
intent of the officer because willfulness is an element of an offense under 18 U.S.C.
§ 242. Accordingly, there is no additional evidentiary burden to justify ignoring
subjective intent.

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Finally, while there are fortunately few reported cases that deal with this level
of officer misconduct, those that do exist all agree that purely illegal activities by law
enforcement constitute a constitutional violation. In United States v. Bradfield, we
considered a series of raids of crack houses by Detroit police officers. 225 F.3d 660,
2000 WL 1033022 (6th Cir. July 18, 2000) (unpublished table decision). During the
course of the raids, officers would take a portion of the money, drugs, and guns for
themselves, while reporting the rest for forfeiture. Bradfield, 2000 WL 1033022, at *1.
We upheld the judgment of acquittal, via a review of the quantum of evidence supporting
the individual charges against the officers. Id. at *4-10. However, implicit in our
analysis is the premise that the actions of the officers would amount to constitutional
violations, if supported by sufficient evidence.
Similarly, in United States v. Parker, three Buffalo police officers, along with a
DEA agent, entered into an agreement with a “known drug trafficker” to arrange a
meeting with a more prominent “Jamaican drug dealer.” 165 F. Supp. 2d 431, 441
(W.D.N.Y. 2001). The plan was for the officers to rob the drug dealer’s safe house and
divide the proceeds from the robbery between themselves, as well as detain the drug
dealer and take cash and drugs off his person. In truth, the “Jamaican drug dealer” was
an FBI undercover agent and the officers’ contact was an FBI confidential informant.
Id. at 442-43. The officers, citing Whren, advanced similar arguments to those of Sease,
claiming that they had probable cause to detain the purported drug dealer. Id. at 453.
The court rejected these arguments, stating “[w]illful conduct taken by officers with the
specific intent to violate rights made specific by the provisions of the Constitution or
decisions of the courts interpreting them will support a conviction under § 242.” Id. at
454. The Second Circuit affirmed all of the convictions of the officers in an unpublished
opinion. United States v. Ferby, 108 F. App’x 676 (2d Cir. 2004).
Finally, in United States v. Contreras, a Laredo police officer arrested a woman,
raped her, and attempted to kill her to avoid having her testify against him. 134 F. Supp.
2d 820, 823 (S.D. Tex. 2000). On habeas review, Contreras argued that his stop was
proper pursuant to a provision in federal law authorizing municipal police officers to

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make stops based on reasonable suspicion that the detainee is an illegal alien, and thus
his 18 U.S.C. § 242 conviction should be overturned. Id. at 825. The district court
dismissed Contreras's contention stating “Contreras did not arrest [the victim] because
he had probable cause to believe she was an illegal alien; he arrested her so he could
rape her.” Id.
For these reasons, where, as here, there is clear evidence that the officers were
not engaged in bona fide law enforcement activities, but instead acted with a corrupt,
personal, and pecuniary interest, the officers violate the civil rights of those that are
stopped, searched, or have their property seized. Therefore, Sease deprived those that
he targeted of their constitutional rights, and thus his convictions under 18 U.S.C. §§ 241
and 242 are supported by sufficient evidence.
C.
Sease’s arguments with regard to his convictions on the non-civil rights counts
are derivative of his arguments on the civil rights counts. He contends because he had
probable cause to make the stops in question, he similarly had the right to perform other
law-enforcement related activities at the stop that form the basis of the other convictions.
For example, Sease argues that his convictions for conspiracy to possess controlled
substances with intent to distribute (21 U.S.C. § 846–Count 2) and possession with intent
to distribute a controlled substance (21 U.S.C. § 841(a)(1)–Counts 15-24) must be
overturned because Sease had the right to possess the drugs in question pursuant to the
valid stops. However, as discussed above, Sease did not engage in bona fide law
enforcement activities, and thus he had no legitimate reason to possess the drugs.
Therefore, those convictions are supported by sufficient evidence.
Similarly, Sease argues that his convictions for violating the Hobbs Act in
disrupting interstate commerce by robbing the drug dealers caught in his staged drug
buys (18 U.S.C. § 1951–Counts 3-11, 13, and 14) should be overturned. Sease concedes
that robbing drug dealers is a proper basis for conviction under the Hobbs Act. See, e.g.
United States v. Ostrander, 411 F.3d 684, 692 (6th Cir. 2005) (unpublished portion)
(“[A]ny argument that the Hobbs Act, or Congress’s Commerce Power . . . does not

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reach robberies that disrupt rather than promote illegal trafficking in drugs is foreclosed
by the case law.”) (quoting United States v. Marrero, 299 F.3d 653, 653-54 (7th Cir.
2002)). Again, Sease claims that his status as a police officer and the presence of
probable cause to make the arrests and seizures means that he did not in fact rob the drug
dealers, and thus the convictions are improper. As the arrests and seizures were not in
fact valid law enforcement actions, this argument fails.
Finally, Sease argues that his convictions for using or carrying a firearm during
and in relation to the commission of drug trafficking (18 U.S.C. § 924(c)–Counts 38-46,
48, and 49) must be overturned because he was not engaged in drug trafficking, but
instead valid arrests and seizures. These arguments fail as well for the reasons discussed
above.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the convictions of Arthur Sease.

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