United States of America v.  Michael Robert Perkins

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-4798 
MICHAEL ROBERT PERKINS,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, Chief District Judge.
(CR-04-351)
Argued: September 21, 2006
Decided: November 29, 2006
Before WILLIAMS and GREGORY, Circuit Judges,
and Thomas E. JOHNSTON, United States District Judge for the
Southern District of West Virginia, sitting by designation.
Affirmed by published opinion. Judge Williams wrote the opinion, in
which Judge Gregory and Judge Johnston joined.
COUNSEL
ARGUED: Michael Oliver Hueston, New York, New York, for
Appellant. Christopher Chen-Hsin Wang, UNITED STATES
DEPARTMENT OF JUSTICE, Civil Rights Division, Appellate Sec-
tion, Washington, D.C., for Appellee. ON BRIEF: Richard H. Rosen-
berg, New York, New York, for Appellant. Bradley J. Schlozman,

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Acting Assistant Attorney General, David K. Flynn, UNITED
STATES DEPARTMENT OF JUSTICE, Civil Rights Division,
Appellate Section, Washington, D.C., for Appellee.
OPINION
WILLIAMS, Circuit Judge:
Michael Perkins, a Petersburg, Virginia city police officer, was
convicted by a jury of kicking and causing bodily injury under color
of law to Lamont Koonce, a motorist stopped for a traffic violation
who fled from the police, thus willfully depriving Koonce of his con-
stitutional right to be free from unreasonable force, a felony1 under 18
U.S.C.A. § 242 (West 2000). Perkins challenges both the admission
of opinion evidence at trial and the sufficiency of the evidence. Find-
ing no reversible error, we affirm.
I.
Shortly before midnight on October 13, 2003, Petersburg police
officers Michael Tweedy and David House observed a car traveling
with no headlights on and damage to its front end. The officers, in
separate vehicles, followed the car, pulled it over, and approached the
driver to issue a warning or ticket for driving at night without lights.
After the officers assisted the driver, Lamont Koonce, out of his car,
Koonce broke loose from their hold and fled on foot. House and
Tweedy gave chase.
During the chase, Koonce leaped over a fence "like a Superman"
and fell on his right side. (J.A. at 236.) Koonce quickly gathered him-
self and kept running until finally, after a lengthy pursuit, Tweedy
caught him and forced him face-down onto the ground, with both of
his arms pinned beneath his body. At some point, Tweedy also used
pepper spray on Koonce.
1A violation of § 242 may be charged as a misdemeanor or a felony.
See 18 U.S.C.A. § 242 (West 2000). If "bodily injury" results from the
acts committed in violation of § 242, then the defendant is guilty of a fel-
ony. Id.
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After Tweedy moved away from Koonce, House approached
Koonce’s left side to handcuff him. House attempted to remove
Koonce’s left arm from under his body, but Koonce resisted. When
Koonce finally released his left arm, Koonce grabbed House’s ankle.
House responded by striking Koonce with a closed fist twice on the
arm and once in the underarm to try to free his ankle, but Koonce
maintained his hold. Tweedy then forcefully stomped on Koonce’s
head three times. When Koonce continued to resist, Tweedy stomped
on his head three more times. After this second round of stomps,
Koonce said, "[a]ll right, man, all right," and allowed House to pull
his left arm out from under him and place a handcuff on his wrist.
(J.A. at 248, 278.)
Tweedy made a radio call stating that he had a subject in custody.
Sergeant John Waldron responded by making a radio call for backup.
At this point, House believed that he and Tweedy did not need assis-
tance because Koonce’s left wrist was in a handcuff. House radioed
Sergeant Waldron and told him that the situation was under control.
Waldron responded by telling all officers to disregard his earlier call
for backup.
Despite this call, Officer Benjamin Fisher responded to Tweedy’s
earlier call and arrived at the scene soon thereafter. House asked
Fisher to help him secure Koonce’s right arm. Tweedy then walked
over and kicked Koonce two or three times in the side and stomped
on Koonce’s head three more times.
A few moments later Perkins, an off-duty Petersburg police officer,
arrived at the scene. By the time Perkins arrived, both House and
Fisher believed that Koonce was under control, as the bloodied,
motionless Koonce was lying face-down on the ground and was not
"going anywhere." (J.A. at 300, 403.) Without consulting or speaking
with any of the officers standing nearby, Perkins immediately ran up
to Koonce and delivered a running kick to Koonce’s side. Perkins
then kicked Koonce a second time, with slightly less force. Immedi-
ately after Perkins’s second kick, Tweedy stomped on Koonce’s head
two more times before Perkins grabbed Tweedy and pulled him away
from Koonce. Fisher then helped House place a handcuff on
Koonce’s right wrist.
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Koonce sustained a number of life-threatening injuries, including
multiple skull fractures, multiple facial fractures, a pneumothorax
(puncture) to his right lung, bleeding in and contusions on the brain,
and bruising on his left lung. At the time he was admitted to the
Southside Regional Medical Center, Koonce was unconscious; he
remained so for several hours.
At the hospital, Koonce was tested on the Glasgow coma scale, a
clinical scale that assesses impaired consciousness. Koonce received
a score of 1 for mental status, indicating that he did not open his eyes;
a score of 1 for verbal response, indicating that he was not speaking;
and a score of 3 for motor response, indicating that he moved away
in response to pain. Due to the severity of his injuries, the still-
unconscious Koonce was transferred to the Medical College of Vir-
ginia (MCV) hospital later that night.
On November 16, 2004, a grand jury indicted Perkins.2 The indict-
ment charged that Perkins, while acting under color of state law,
kicked and caused bodily injury to Koonce, thus willfully depriving
Koonce of his right to be free from unreasonable force, a felony under
18 U.S.C.A. § 242.3 The case proceeded to a jury trial.
At trial, Perkins argued that his kicks to Koonce were reasonable
under the circumstances. In response to this argument, the Govern-
ment offered opinion testimony from several officers regarding the
reasonableness of Perkins’s use of force against Koonce. Of the offi-
2Tweedy was charged in the same indictment with a felony violation
of 18 U.S.C.A. § 242; he was additionally charged with falsely alleging
in a police report that Koonce was combative and that he had used only
the force reasonably necessary to subdue Koonce, in violation of 18
U.S.C.A. § 1519 (West 2000). Tweedy pleaded guilty to the § 242
charge and was sentenced by the district court to 108 months’ imprison-
ment.
3To convict Perkins of a felony under § 242, the jury had to find that
(1) Perkins deprived Koonce of a right secured by the Constitution or
laws of the United States, in this case the Fourth Amendment right to be
free from the use of unreasonable force; (2) Perkins acted willfully; (3)
Perkins acted under color of law; and (4) Koonce suffered bodily injury
as a result of Perkins’s conduct. 18 U.S.C.A. § 242.
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cers that testified, the Government offered only Inspector Carter Bur-
nett as an expert under Federal Rule of Evidence 702.
Officers House and Fisher — both eyewitnesses to Perkins’s kicks
to Koonce — testified about their departmental training in defensive
tactics and the use of force. Using a use-of-force dummy, they both
demonstrated the kicks that they witnessed Perkins deliver to Koonce.
The Government asked House whether, based on his experience and
his assessment of the situation, he saw "any law enforcement reason
for those kicks[.]" (J.A. at 258.) Perkins objected to this question on
the ground of "ultimate issue."4 (J.A. at 259.) The district court over-
ruled the objection, and House answered that he did not see any rea-
son for the kicks.5 Likewise, in response to the Government’s
question whether, based on his experience and his assessment of the
scene, Perkins’s kicks to Koonce were "reasonable," Fisher answered,
"No." (J.A. at 376.) Fisher also testified that, in his opinion, the kicks
were not necessary and that there were other techniques he was
trained to use that would have been appropriate. Perkins did not
object to any of Fisher’s testimony.
Other officers who had not witnessed Perkins’s kicks to Koonce
also testified about the reasonableness of the kicks. In response to the
Government’s question whether it would have been appropriate for an
officer to "deliver a hard kick into the side of [a motionless] individ-
ual lying on the ground," Corporal Stan Allen, Perkins’s defensive
tactics instructor, replied, "[n]ot unless [the individual] was armed
with a weapon and w[as] threatening the officer." (J.A. at 571.) Per-
kins only made a general objection to Allen’s testimony that reason-
able officers would not disagree with Allen’s conclusion that
4While Federal Rule of Evidence 704(a) plainly precludes "ultimate
issue" objections, it is clear from the context that Perkins was objecting
to the testimony because he thought the question was merely seeking
House’s opinion as to what verdict the jury should reach.
5Later, the Government asked House whether kicking a suspect was an
"appropriate" way to protect one’s self from being exposed to the sus-
pect’s blood. (J.A. at 301-02.) Perkins objected to the use of the word
"appropriate." The court overruled the objection, and House answered in
the negative. Perkins makes no mention of this testimony in his evidenti-
ary challenge on appeal. We therefore do not address its admissibility.
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Perkins’s kicks were inappropriate. Similarly, Sergeant Philip Jones
testified that kicks like those Perkins delivered to Koonce were "not
appropriate." (J.A. at 591.) He also testified that reasonable officers
would not disagree with his opinion. Sergeant Waldron testified that
kicking a motionless person on the ground was not "reasonable"
under the General Orders of the Petersburg Police Department. (J.A.
at 614.) Perkins did not object to Jones’s or Waldron’s testimony.
Inspector Burnett, the Government’s "force expert," testified
regarding the classes he taught in defensive tactics and controlling
suspects. Burnett stated that he saw no "legitimate" law enforcement
reason for Perkins to kick Koonce. (J.A. at 526.) In response to a
number of hypotheticals positing a suspect lying motionless on the
ground with one arm in a handcuff, Burnett testified that it was inap-
propriate for an officer to kick a suspect in that posture. Burnett also
testified that reasonable officers would not disagree with his conclu-
sions. Perkins’s sole objection was to the Government’s use of the
term "legitimate" in its question to Burnett.
The Government also introduced expert medical testimony about
the cause of Koonce’s injuries. Dr. Jamal Farran, Koonce’s attending
physician at MCV and one of the Government’s medical experts, tes-
tified that the likely cause of Koonce’s punctured right lung and
bruised left lung was blunt force trauma. When asked about Koonce’s
Glasgow coma test, Dr. Farran testified that an individual can react
to painful stimuli while unconscious.
Both at the conclusion of the Government’s case-in-chief and after
the Government rested, Perkins moved for acquittal under Federal
Rule of Criminal Procedure 29 on the ground that the Government
had failed to show that it was Perkins’s kicks, as contrasted with
Tweedy’s kicks, that caused Koonce "bodily injury" under 18
U.S.C.A. § 242.6 The court twice denied Perkins’s motion, stating that
"[u]nder the case law, . . . just the kicking alone, the infliction of pain,
is a bodily injury." (J.A. at 603.) In its instructions to the jury, the
court defined "bodily injury" as a "cut, abrasion, bruise, fracture, or
other disfigurement, or mere physical pain, or any other injury to the
6Aside from recalling Sergeant Waldron, Perkins did not call any other
witnesses at trial.
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body . . . [even if not] significant, severe or permanent." (J.A. at 685-
86.)
On February 17, 2005, after a three-day trial, the jury convicted
Perkins of a felony under 18 U.S.C.A. § 242, and he was sentenced
to 51 months’ imprisonment. Perkins timely noted an appeal. We
have jurisdiction pursuant to 28 U.S.C.A. § 1291 (West 2006).
II.
Perkins argues on appeal that the district court erred in admitting
expert testimony without a proper foundation, in admitting lay and
expert opinion testimony that improperly stated a legal conclusion,
and that the evidence was insufficient to prove that Perkins caused
"bodily injury" to Koonce. We address each of these arguments in
turn.
We typically review for abuse of discretion a district court’s evi-
dentiary rulings. United States v. Gray, 405 F.3d 227, 238 (4th Cir.
2005). When a party fails to object to the admission of evidence, how-
ever, we review the admission for plain error. United States v. Chin,
83 F.3d 83, 87 (4th Cir. 1996). Perkins first contends that the district
court erred in admitting without a proper foundation the opinion testi-
mony of Officers House and Fisher, Sergeants Jones and Waldron,
and Corporal Allen, none of whom were qualified as expert witnesses.
Because Perkins did not object at trial to any of the testimony on this
ground, we review for plain error.7
Federal Rule of Evidence 701 permits a lay witness to give opinion
testimony that is "(a) rationally based on the perception of the wit-
7Under plain error review, Perkins must show that (1) the district court
committed an error; (2) the error was plain; and (3) the error affected his
substantial rights, i.e., that the error affected the outcome of the district
court’s proceedings. United States v. Olano, 507 U.S. 725, 732-34
(1993); United States v. Hughes, 401 F.3d. 540, 547-48 (4th Cir. 2005).
Even if Perkins makes this showing, we should only notice the error if
the error "seriously affects the fairness, integrity or public reputation of
judicial proceedings." Hughes, 401 F.3d at 555 (internal quotation marks
and citation omitted).
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ness, (b) helpful to a clear understanding of the witness’ testimony or
the determination of a fact in issue, and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702."8
Fed. R. Evid. 701. Because Rule 701 "does not distinguish between
expert and lay witnesses, but rather between expert and lay testi-
mony," Fed. R. Evid. 701 advisory committee’s note, the line between
lay opinion testimony under Rule 701 and expert testimony under
Rule 702 "is a fine one," 3 Stephen A. Saltzburg, Michael M. Martin
& Daniel J. Capra, Federal Rules of Evidence Manual 701-14 (9th ed.
2006). See also United States v. Ayala-Pizarro, 407 F.3d, 25, 28 (1st
Cir. 2005)(noting that "[t]he line between expert testimony under Fed.
R. Evid. 702 . . . and lay opinion testimony under Fed. R. Evid. 701
. . . is not easy to draw")(internal quotation marks omitted). As an
example of the kinds of distinctions that Rule 701 makes, the Com-
mittee instructs that the rule would permit a lay witness with personal
experience to testify that a substance appeared to be blood, but that
it would not allow a lay witness to testify that bruising around the
eyes is indicative of skull trauma. Fed. R. Evid. 701 advisory commit-
tee’s note.
As helpful as this example may be to our interpretive cause, the
fine line remains. While we have noted that "[a] critical distinction
between Rule 701 and Rule 702 testimony is that an expert witness
must possess some specialized knowledge or skill or education that
is not in possession of the jurors," Certain Underwriters at Lloyd’s,
London v. Sinkovich, 232 F.3d 200, 203 (4th Cir. 2000) (internal quo-
tation marks omitted), we also have acknowledged that the "subject
matter of Rule 702 testimony need not be arcane or even especially
difficult to comprehend," Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir.
1993). The interpretive waters are muddier still: while lay opinion tes-
timony must be based on personal knowledge, see Fed. R. Evid. 701,
8Rule 701 was amended in 2000 to include subsection (c). The Advi-
sory Commitee’s position was that the amendment did not work a sea
change to the rule. 3 Stephen A. Saltzburg, Michael M. Martin & Daniel
J. Capra, Federal Rules of Evidence Manual 701-15 (9th ed. 2006). We
agree. The amendment "serves more to prohibit the inappropriate admis-
sion of expert opinion under Rule 701 than to change the substantive
requirements of the admissibility of lay opinion." United States v. Gar-
cia, 291 F.3d 127, 139 n.8 (2d Cir. 2002).
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"expert opinions may [also] be based on firsthand observation and
experience." 29 Charles Wright & Victor Gold, Federal Practice and
Procedure: Evidence § 6253 (1997 & Supp. 2006). At bottom, then,
Rule 701 forbids the admission of expert testimony dressed in lay wit-
ness clothing, but it "does not interdict all inference drawing by lay
witnesses." United States v. Santos, 201 F.3d 953, 963 (7th Cir.
2000).
Where opinion testimony focuses on the standard of the objectively
reasonable officer, "it is more likely that Rule 702’s line between
common and specialized knowledge has been crossed." Kopf, 993
F.2d at 378. In Perkins’s case we conclude that the district court,
although close to crossing that line, properly admitted the challenged
testimony given by Officers House and Fisher. Both officers observed
Perkins kick Koonce and thus testified based on their contemporane-
ous perceptions; as such, their testimony satisfies Rule 701’s personal
knowledge requirement. See Fed. R. Evid. 701. Moreover, their
observations were "common enough and require[d] such a limited
amount of expertise . . . that they can, indeed, be deemed lay witness
opinion[s]." United States v. VonWillie, 59 F.3d 922, 929 (9th Cir.
1995). Because their testimony was framed in terms of their eyewit-
ness observations and particularized experience as police officers, we
have no trouble finding that their opinions were admissible under
Rule 701.
On the other hand, the "reasonableness" testimony given by Ser-
geants Waldron and Jones and Corporal Allen crossed the line
between Rules 701 and 702. None of those officers observed Per-
kins’s use of force on Koonce. Their opinions that Perkins’s use of
force was inappropriate were elicited in response to hypothetical
questions based on second-hand accounts, making their testimony
similar, if not indistinguishable, from the properly qualified expert
testimony admitted at Perkins’s trial and admitted in other excessive
force cases. See, e.g., United States v. Mohr, 318 F.3d 613, 623-24
(4th Cir. 2003)(admitting expert testimony on the reasonableness of
the defendant’s use of force when the expert did not observe the
defendant’s actions but instead gave his opinion in response to
abstract questions). Such opinion testimony does not satisfy Rule
701’s personal knowledge requirement. See United States v. Glenn,
312 F.3d 58, 67 (2d Cir. 2002)(drug dealer’s testimony that the defen-
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dant must have been carrying a gun was erroneously admitted under
Rule 701 because the witness lacked first-hand knowledge); Washing-
ton v. Dep’t of Transp., 8 F.3d 296, 300 (5th Cir. 1993)("Under the
Federal Rules of Evidence, speculative opinion testimony by lay wit-
nesses — i.e., testimony not based upon the witness’s perception —
is generally considered inadmissible."). Accordingly, the district court
erred in admitting Jones’s, Waldron’s, and Allen’s opinion testimony
without a proper foundation.
Nevertheless, we are confident that this error did not affect the out-
come of Perkins’s trial. Sergeant Jones’s brief "reasonableness" testi-
mony came on the heels of his clearly admissible and extensive
testimony about a conversation he had with Perkins during which Per-
kins admitted to kicking Koonce and demonstrated for Jones how he
had kicked him. Furthermore, both Sergeant Waldron, who recounted
that his fourteen years of experience included time as a training offi-
cer, corporal, and sergeant, and Corporal Allen, whose experience and
training was enough to cause the district court to assume his expert
status, could have been offered as expert police witnesses in the first
instance.9 See Kopf, 993 F.2d at 376 (a "witness’ qualifications to ren-
der an expert opinion are . . . liberally judged by Rule 702"); United
States v. Figueroa-Lopez, 125 F.3d 1241, 1246-47 (9th Cir.
1997)(holding that, although it was error for the district court to admit
opinion testimony under 701, the error was harmless because the wit-
nesses could have been qualified as experts under 702). Therefore,
under plain error review, Perkins’s challenge fails.
III.
Perkins also argues that the district court erred in admitting both
expert and non-expert testimony regarding the reasonableness of Per-
9We note that we are not concerned that our holding will encourage
parties to ignore the disclosure requirements of Federal Rule of Criminal
Procedure 16 and the foundation requirements of Rule 702 when offering
an expert witness. Unless parties are enlivened by the prospects of poten-
tial Rule 701/702 challenges to the opinion testimony that they elicited
at trial, they will continue to "play by the rules" in offering experts.
Moreover, district courts are not free to misapply federal rules simply
because courts sitting in review may find these misapplications harmless.
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kins’s use of force because such testimony impermissibly stated a
legal conclusion. During House’s testimony, Perkins objected on the
ground that the testimony went to the "ultimate issue" of the reason-
ableness of Perkins’s use of force. Likewise, during Inspector Bur-
nett’s testimony, Perkins objected to the Government’s question
asking whether Burnett saw any "legitimate" reason for Perkins’s
kicks. Therefore, we review the admission of the challenged portions
of House’s and Burnett’s testimony for abuse of discretion. We
review the admission of all other opinion testimony about the reason-
ableness of Perkins’s kicks for plain error.10
Federal Rule of Evidence 704(a) provides that, with exceptions not
relevant here, "testimony in the form of an opinion or inference other-
wise admissible is not objectionable because it embraces an ultimate
issue to be decided by the trier of fact." Although this rule officially
abolished the so-called "ultimate issue" rule, see Fed. R. Evid. 704
advisory committee’s notes, it did not lower the bar "so as to admit
all opinions." Id. Testimony on ultimate issues still "must be other-
wise admissible under the Rules of Evidence." Weinstein’s Federal
Evidence § 704.03[1] (2d ed. 2002). This means that the testimony
must be helpful to the trier of fact, in accordance with Rules 701 and
702, and must not waste time, in accordance with Rule 403. "These
provisions afford ample assurances against the admission of opinions
which would merely tell the jury what result to reach, somewhat in
the manner of the oath-helpers of an earlier day." United States v.
Barile, 286 F.3d 749, 759-60 (4th Cir. 2002)(quoting Fed. R. Evid.
704 advisory committee’s notes). The touchstone of admissibility of
testimony that goes to the ultimate issue, then, is helpfulness to the
jury. Kopf, 993 F.2d at 377-78 (stating that while "[a]n opinion is not
10Perkins made a general objection during Corporal Allen’s testimony.
The reason for the objection is not clear from its context. See Fed. R.
Evid. 103(a)(1) (a timely objection must "stat[e] the specific ground of
objection, if the specific ground was not apparent from the context").
Such failure to specify is typically fatal to the objection on appeal. See
United States v. Parodi, 703 F.2d 768, 783 (4th Cir. 1983)("[T]he object-
ing party [must] object with that reasonable degree of specificity which
would have adequately apprised the trial court of the true basis for his
objection . . . .")(internal quotation marks omitted)). Accordingly, we
review the admissibility of Allen’s testimony for plain error.
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objectionable simply because it embraces an ultimate issue to be
decided by the trier of fact, . . . such an opinion may be excluded if
it is not helpful to the trier of fact")(internal quotation marks omitted);
Weinstein’s Federal Evidence § 704.04[2][a]("The most common rea-
son for excluding opinion testimony that gives a legal conclusion is
lack of helpfulness . . . ."). Thus, the district court’s task "is to distin-
guish [helpful] opinion testimony that embraces an ultimate fact from
[unhelpful] opinion testimony that states a legal conclusion," a task
that we have acknowledged "is not an easy one." Barile, 286 F.3d at
760.
We have stated that "[t]he best way to determine whether opinion
testimony [is unhelpful because it merely states] legal conclusions, ‘is
to determine whether the terms used by the witness have a separate,
distinct and specialized meaning in the law different from that present
in the vernacular.’" Id. (quoting Torres v. County of Oakland, 758
F.2d 147, 150 (6th Cir. 1985)). The district court should first consider
whether the question tracks the language of the legal principle at issue
or of the applicable statute; then, the court should consider whether
any terms employed have a specialized legal meaning. Barile, 286
F.3d at 760.
To state the general rule, however, "is not to decide the far more
complicated and measured question of when there is a transgression
of the rule." Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 99 (1st
Cir. 1997). The rule makes ultra-fine distinctions, with admissibility
often turning on word choice: the question "Did T have capacity to
make a will?" impermissibly asks for a legal conclusion, while the
question "Did T have sufficient mental capacity to know the nature
and extent of his property?" does not. Fed. R. Evid. 704 advisory
committee’s notes.
On the one hand, conclusory testimony that a company engaged in
"discrimination," that a landlord was "negligent," or that an invest-
ment house engaged in a "fraudulent and manipulative scheme"
involves the use of terms with considerable legal baggage; such testi-
mony nearly always invades the province of the jury.11 See, e.g.,
11We noted in Barile that "in some circumstances, opinion testimony
that arguably states a legal conclusion is helpful to the jury, and thus,
admissible." United States v. Barile, 286 F.3d 749, 760 n.7 (4th Cir.
2002)(quoting Weinstein’s Federal Evidence § 704.04[2][a] (2d ed.
2002)).
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Andrews v. Metro N. Commuter R.R. Co., 882 F.2d 705, 709-10 (2d
Cir. 1989)(testimony that defendant was "negligent" stated a legal
conclusion); United States v. Scop, 846 F.2d 135, 140 (2d Cir.
1988)(testimony that defendants had engaged in a "fraudulent and
manipulative scheme" stated a legal conclusion); Torres, 758 F.2d at
151 (testimony that county engaged in "discrimination" violated Rule
704). On the other hand, the legal meaning of some terms is not so
distinctive from the colloquial meaning, if a distinction exists at all,
making it difficult to gauge the helpfulness, and thus admissibility, of
the testimony under Rule 704. See, e.g., United States v. Sheffey, 57
F.3d 1419, 1426 (6th Cir. 1996)(testimony that the defendant had
driven "recklessly, in extreme disregard for human life," did not state
a legal conclusion because the terms "recklessly" and "extreme disre-
gard for human life" do not have a legal meaning distinct from every-
day usage).
At Perkins’s trial, the Government asked House whether, based on
his assessment of the situation, he saw "any law enforcement reason
for [Perkins’s] kicks[.]" (J.A. at 258.) Similarly, the Government
asked Burnett whether there was "any legitimate reason for [Perkins
to kick] Mr. Koonce[.]" (J.A. at 525-26.) Under 18 U.S.C.A. § 242,
courts employ an "objective reasonableness" standard to assess an
officer’s use of force. See Mohr, 318 F.3d 613, 623 (4th Cir. 2003).
This standard requires the jury to determine "whether a reasonable
officer in the same circumstances would have concluded that a threat
existed justifying the particular use of force." Elliot v. Leavitt, 99 F.3d
640, 642 (4th Cir. 1996).12 Clearly, then, the word "reasonable" in the
§ 242 context has a specific legal meaning, but the distinction
between its legal and common meaning is not as clear as with other
more technical terms like "negligence" or "fraud," i.e., terms that had
their common vernacular stem from their legalistic roots.
In Kopf, a § 1983 excessive force case involving the use of slap-
jacks and a police dog, we stated that the facts of every case should
12Leavitt is a § 1983 excessive force case. "Because 18 U.S.C.A. § 242
is merely the criminal analog of 42 U.S.C.A. § 1983, and because Con-
gress intended both statutes to apply similarly in similar situations, our
civil precedents are equally persuasive in this criminal context." United
States v. Cobb, 905 F.2d 784, 788 n.6 (4th Cir. 1990).
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determine whether testimony would be helpful to the jury and sug-
gested that "[w]here force is reduced to its most primitive form — the
bare hands — expert testimony might not be helpful." Kopf, 992 F.2d
at 378. We declined to decide whether the experts in that case could
have given their opinion on the "ultimate issue" of whether the force
used was "reasonable"; indeed, we acknowledged that such testimony
might have been inadmissible. Id. n.3.
Later in Mohr, a § 242 case also involving a police dog, we held
that an expert’s rebuttal testimony that an officer "violated ‘prevailing
police practices nationwide in 1995,’" that the officer’s use of the dog
was "inappropriate," and that there was "no reason" for the officer’s
failure to give a canine warning was admissible under Rule 704(a).
Mohr, 318 F.3d at 624. We attached particular importance to the fact
that the testimony was delivered during rebuttal, after the defendant’s
experts had testified to the reasonableness of the defendant’s use of
the police dog. Id.
Mohr suggests that the challenged testimony in this case did not
transgress Rule 704(a).13 Like in Mohr, the officers here testified that
they saw "no reason" for Perkins’s use of force. Cf. id. Taking help-
fulness to the jury as our guiding principle, we conclude that the dis-
trict court did not err in admitting the challenged portions of Officer
House’s and Inspector Burnett’s testimony. While a very close ques-
tion, we conclude that the Government’s questions were phrased in
such a manner so as to avoid the baseline legal conclusion of reason-
ableness. See Torres, 758 F.2d at 151. The officers’ responses that
they personally saw no reason for Perkins’s kicks provided the jury
with concrete examples against which to consider the more abstract
13Our review of other circuits’ decisions does not produce a clear-cut
answer; indeed, courts have reached conflicting conclusions. Compare
Hygh v. Jacobs, 961 F.2d 359, 363 (2d Cir. 1992)(in a § 1983 case, hold-
ing that Rule 704 was violated by an expert’s testimony that defendant’s
use of force was not "justified under the circumstances," not "warranted
under the circumstances," and "totally improper") with United States v.
Myers, 972 F.2d 1566, 1577-78 (11th Cir. 1992)(no abuse of discretion
in admitting lay opinion testimony that defendant’s use of stun gun was
not reasonable when witness "properly framed his opinion in accordance
with prevailing police standards").
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question of whether an "objectively reasonable officer" would have
employed the same force. The Government’s questions were not
couched in terms of objective reasonableness; instead, they honed in
on Officer House’s and Inspector Burnett’s personal assessments of
Perkins’s use of force. We recognize that this distinction is a fine one.
When the common and legal meanings of a term are not easily
unfurled from each other, however, as is certainly the case with "rea-
sonable," it is difficult for us to conclude that testimony was unhelp-
ful to the jury unless the testimony actually framed the term in its
traditional legal context. In this case, then, Rule 704 justifies differen-
tiating between the officers’ testimony that they saw no "law enforce-
ment" or "legitimate" reason for Perkins’s kicks and testimony that
Perkins’s actions were "objectively unreasonable." To be sure, this
distinction must be measured in inches, not feet. Nevertheless, we
cannot hold that the officers’ testimony was necessarily unhelpful, nor
can we say that it merely told the jury what verdict to reach or "sup-
plant[ed] [the] jury’s independent exercise of common sense." Kopf,
993 F.2d at 377.14
Perkins also challenges the admission of Fisher’s, Waldron’s,
Jones’s, and Allen’s testimony about the reasonableness of his use of
force. As noted above, because Perkins did not object at trial, we
review the admission of this opinion testimony for plain error. Given
our conclusion that the district court did not err in admitting the
objected-to portions of House’s and Burnett’s testimony, we easily
conclude that the district court did not commit reversible plain error
in admitting these officers’ opinions about the reasonableness of Per-
kins’s use of force. See Olano, 507 U.S. at 732-34; see also supra
note 14.
14Even assuming for the sake of argument that the district court erred
in admitting this testimony, the error was harmless. The evidence against
Perkins was cumulative and overwhelming. House’s brief testimony
about the reasonableness of Perkins’s use of force followed his damning
factual testimony about the circumstances of Perkins’s kicks to Koonce.
Moreover, there was substantial independent testimony from other wit-
nesses about Perkins’s use of force. Finally, the district court later
defined "unreasonable force" for the jury after instructing them that they
alone were to judge the reasonableness of Perkins’s use of force, instruc-
tions that undoubtedly had a curative effect.
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IV.
Perkins’s final contention is that the evidence against him was
insufficient to sustain his felony conviction under 18 U.S.C.A. § 242.
We review de novo a district court’s denial of a motion, made pursu-
ant to Rule 29 of the Federal Rules of Criminal Procedure, for judg-
ment of acquittal. United States v. Alerre, 430 F.3d 681, 693 (4th Cir.
2005). In conducting such review, we must uphold a jury verdict if
there is substantial evidence, viewed in the light most favorable to the
Government, to support it. See Burks v. United States, 437 U.S. 1, 17
(1978). "[S]ubstantial evidence is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a conclusion
of a defendant’s guilt beyond a reasonable doubt." United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996)(en banc). "In applying this
standard of review, we must remain cognizant of the fact that ‘[t]he
jury, not the reviewing court, weighs the credibility of the evidence
and resolves any conflicts in the evidence presented, and if the evi-
dence supports different, reasonable interpretations, the jury decides
which interpretation to believe.’" Id. (quoting United States v. Mur-
phy, 35 F.3d 143, 148 (4th Cir. 1994)).
To be convicted of a felony under 18 U.S.C.A. § 242, the Govern-
ment must prove that the defendant "willfully subject[ed] [a] person
. . . to the deprivation of any rights, privileges, or immunities secured
or protected by the Constitution or laws of the United States, . . . [and]
bodily injury result[ed] [from such deprivation]." 18 U.S.C.A. § 242.
Although the statute does not define "bodily injury," the term is
defined identically in four other provisions of Title 18. See 18
U.S.C.A. §§ 831(f)(5) (West 2000); 1365(g)(4) (West 2000);
1515(a)(5) (West 2000); 1864(d)(2) (West 2000). All of these provi-
sions define "bodily injury" as "(A) a cut, abrasion, bruise, burn, or
disfigurement; (B) physical pain; (C) illness; (D) impairment of
[a/the] function of a bodily member, organ, or mental faculty; or (E)
any other injury to the body, no matter how temporary". Id. While we
have not had occasion to consider the applicability of this definition
to § 242, at least three of our sister circuits have, and each has applied
the definition in the § 242 context. See United States v. Gonzalez, 436
F.3d 560, 575 (5th Cir. 2006); United States v. Bailey, 405 F.3d 102,
111 (1st Cir. 2005); United States v. Myers, 972 F.2d 1566, 1572
(11th Cir. 1992)(noting that "[w]hen Congress uses, but does not
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define a particular word, it is presumed to have adopted that word’s
established meaning"). We follow suit and adopt the established defi-
nition of "bodily injury" for the purposes of § 242.
Perkins argues that because the only proof of bodily injury was the
evidence that Koonce reacted to pain stimuli during the Glasgow
coma test, the evidence was insufficient as a matter of law to prove
that Koonce felt pain at the time of Perkins’s kicks, when Koonce was
unconscious. Perkins’s argument is without merit. The definition of
"bodily injury" that we adopt today does not require cataclysmic inju-
ries: physical pain alone or any injury to the body, no matter how
fleeting, suffices. Dr. Farran, the Government’s medical expert and
the physician attending to Koonce the night of his admission to the
hospital, testified that blunt force trauma — Perkins’s kicks certainly
qualify as such — was the likely cause of Koonce’s pneumothorax
and the bruising to his left lung. Likewise, the Glasgow coma test
indicated that Koonce moved away in response to pain; Dr. Farran
testified that unconscious individuals are able to feel and react to pain.
Moreover, there was uncontroverted testimony that Perkins delivered
forceful running kicks to Koonce’s abdomen; the jury could have
found that Perkins’s kicks caused Koonce to suffer a "bruise" on his
left lung, "physical pain," "impairment of [the] function" of his lung,
or "temporary injury," any of which would have satisfied Title 18’s
definition of "bodily injury." Therefore, the evidence provided a suffi-
cient basis for a rational trier of fact to find that Perkins caused "bod-
ily injury" to Koonce. We cannot reverse simply because the jury
exercised its fact-finding discretion. Burgos, 94 F.3d at 862-63.
V.
In sum, the district court did not commit reversible error in admit-
ting the officers’ opinion testimony that centered on the reasonable-
ness of Perkins’s use of force. Moreover, viewing the evidence in the
light most favorable to the Government, a reasonable jury unquestion-
ably could have found that Perkins caused "bodily injury" to Koonce.
Accordingly, we affirm Perkins’s felony conviction.
AFFIRMED
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