United States v. William Cozzi ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2648
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
W ILLIAM C OZZI,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 276—Blanche M. Manning, Judge.
A RGUED F EBRUARY 18, 2010—D ECIDED JULY 30, 2010
Before E ASTERBROOK, Chief Judge, and K ANNE and
R OVNER, Circuit Judges.
K ANNE, Circuit Judge. Chicago Police Officer William
Cozzi shackled a man to a wheelchair in a hospital and
then repeatedly bludgeoned him in the head and face
with a sap.1 He now appeals the district court’s denial of
1
Although the record does not contain a description of the
actual weapon that Cozzi used, a sap is generally described as
(continued...)
2 No. 09-2648
his motion to dismiss the indictment charging him
with violating his victim’s civil rights. He also appeals
the district court’s use of the sentencing guideline for
aggravated assault rather than the guideline for civil
rights violations. Neither of the issues Cozzi raises on
appeal has merit. We therefore affirm Cozzi’s convic-
tion and sentence.
I. B ACKGROUND
Randle Miles was stabbed during an altercation in
August 2005. He then drank heavily before an ambulance
came and took him to Norwegian American Hospital
in Chicago. William Cozzi, a Chicago Police Department
officer, was dispatched to the scene of the altercation,
but eventually made his way to the hospital to talk with
Miles. Miles was apparently being loud and abusive
to hospital staff, so Cozzi placed Miles under arrest,
handcuffing him to a wheelchair and shackling his legs.
While several witnesses looked on, Cozzi then hit Miles
repeatedly with a non-police-issued sap. Cozzi later
falsified a police report and misdemeanor complaints
claiming that Miles had thrown punches and that Cozzi
had struck Miles with his hand; he never mentioned
the sap. The incident, however, was caught on tape by a
1
(...continued)
“a leather-covered flat or round piece of lead with a spring
handle, although it could contain lead shot rather than a solid
piece of metal.” Jack Lewis et al., The Gun Digest Book of
Assault Weapons 42 (7th ed. 2007).
No. 09-2648 3
hospital security camera. The hospital contacted the
Chicago Police Department’s Office of Professional Stan-
dards (“OPS”) later that month to report the incident.
OPS started an investigation the day after the hospital
reported the incident. It interviewed several witnesses
and obtained a copy of the video and 911 calls related
to the event. On September 14, 20, and 21, 2005, OPS
interviewed Cozzi. He was first given administrative
rights, which compelled him to make a statement or lose
his job, but which also guaranteed that his statements
could not be used against him in any future criminal
proceedings. Ultimately, OPS concluded that Cozzi
should be terminated from the Chicago Police Department.
In December 2005, Cozzi was indicted in Cook County
for aggravated felony battery and official misconduct.
He pled guilty in May 2007 to a reduced misdemeanor
battery charge, for which the court sentenced him to
eighteen months’ probation and required him to attend
anger management classes. The superintendent of the
Chicago Police Department filed charges in April 2006 to
fire Cozzi from the police department. The Chicago Police
Board held public hearings in July and August 2007
in which Cozzi was called as an adverse witness. In
October 2007, the Police Board decided 6-2 to suspend
Cozzi for two years rather than terminate him. His sus-
pension was made retroactive to April 2006. The Cook
County Circuit Court Chancery Division affirmed the
decision in July 2008 over the city’s appeal.
Former FBI agent Jody Weis was scheduled to be-
come the Chicago Police Department’s superintendent on
February 1, 2008. In January 2008, Weis told the press
4 No. 09-2648
that he was unhappy with the Police Board’s decision
and promised to review Cozzi’s case. That same month,
Weis sent two emails to an agent in the FBI’s Chicago
field office, asking whether the FBI had investigated
Cozzi for civil rights violations and mentioning that the
former superintendent had unsuccessfully tried to fire
Cozzi and that Cozzi had “falsified his statement.” Weis
also attached a copy of the video clip of the incident.
The FBI had not yet started an investigation, but it
quickly did. In April 2008, a federal grand jury in-
dicted Cozzi on one count of violating 18 U.S.C. § 242 by
depriving Miles of his right to be free from the unrea-
sonable use of force. None of the federal prosecutors saw
or reviewed Cozzi’s immunized statements, and his
protected statements were removed from the OPS files
that were turned over to the federal grand jury.
Cozzi filed a motion in the district court seeking to
have the indictment dismissed on the grounds that the
government had improperly used his immunized state-
ments in violation of Garrity v. New Jersey, 385 U.S. 493(1967). The district court denied his motion, finding that
no one on the prosecution team reviewed the state-
ments and that Weis could not have had more than a
“tangential influence” on the prosecution team’s trial
strategy. Cozzi entered a conditional guilty plea, re-
serving his argument under Garrity to appeal. He also
objected to several issues regarding the applicable sen-
tencing guidelines and calculations. The district court
sentenced Cozzi to forty months’ imprisonment in
June 2009. This appeal followed.
No. 09-2648 5
II. A NALYSIS
Cozzi argues on appeal that the district court should
have dismissed the indictment because Weis’s review of
his protected statements and subsequent tip to the FBI
constituted an improper use of his statements in viola-
tion of Garrity, 385 U.S. 493, and Kastigar v. United States,
406 U.S. 441 (1972). He also argues that the district court
erred by calculating his base offense level under the
guideline for aggravated assault rather than the guideline
for civil rights violations.
A. Use of Immunized Statements
We review the district court’s legal conclusions de novo
and its factual findings for clear error. See United States v.
Greve, 490 F.3d 566, 570 (7th Cir. 2007). The Fifth Amend-
ment, applicable to the states via the Fourteenth Amend-
ment, provides that a person cannot be compelled to
testify if in so doing he would incriminate himself. U.S.
Const. amend. V. In some circumstances, however, the
government may compel someone to testify, even if the
testimony is incriminating, if the government gives the
witness immunity. See, e.g., 18 U.S.C. § 6002. This excep-
tion to the general rule against compelled self-incrimina-
tion stems in part from the Supreme Court’s decision in
Garrity, 385 U.S. 493. There, several police officers were
interviewed as part of an investigation into fixing traffic
tickets. The officers were faced with a daunting choice:
they were free to invoke their right not to incriminate
themselves, but any officer that refused to testify would
lose his job. The state then used some of the officers’
6 No. 09-2648
testimony, over the officers’ objections, in a later criminal
trial. Id. at 494-95. The issue made its way to the
Supreme Court, which held that “the protection of the
individual under the Fourteenth Amendment against
coerced statements prohibits use in subsequent criminal
proceedings of statements obtained under threat of re-
moval from office . . . .” Id. at 500.
Later, in Kastigar, 406 U.S. 441, the Supreme Court
upheld the constitutionality of a federal immunity
statute, explaining that to supplant the Fifth Amend-
ment’s privilege, the government is only required to
provide “use and derivative-use immunity”—that is, that
the government cannot introduce the compelled testi-
mony into evidence at a later trial, or make derivative
use of the testimony. Id. at 453. The Court noted that
use and derivative-use immunity “prohibits the prose-
cutorial authorities from using the compelled testimony
in any respect . . . .” Id. It specified that “[t]his total pro-
hibition on use provides a comprehensive safeguard,
barring the use of compelled testimony as an ‘investiga-
tory lead,’ and also barring the use of any evidence
obtained by focusing investigation on a witness as a
result of his compelled disclosures.” Id. at 460 (footnote
omitted). Once the defendant shows that he made a
protected statement, federal prosecutors have “the af-
firmative duty to prove that the evidence [they] propose[ ]
to use is derived from a legitimate source wholly inde-
pendent of the compelled testimony.” Id.Some courts have read Kastigar expansively to prohibit
not only the introduction of compelled testimony into
evidence, but also “assistance in focusing the investiga-
No. 09-2648 7
tion, deciding to initiate prosecution, refusing to plea-
bargain, interpreting evidence, planning cross-examina-
tion, and otherwise generally planning trial strategy.” See,
e.g., United States v. McDaniel, 482 F.2d 305, 311 (8th Cir.
1973). We, however, rejected this broad reading of Kastigar,
opting instead for a more measured approach. See United
States v. Velasco, 953 F.2d 1467, 1474 (7th Cir. 1992).
We held in Velasco that “the mere tangential influence
that privileged information may have on the prosecutor’s
thought process in preparing for trial is not an imper-
missible ‘use’ of that information.” Id. This approach ac-
knowledges that “[t]he burden on the prosecution to
establish an independent source for evidence against a
defendant is a heavy one indeed,” but that it should not
be an impossible one to bear. Id. We re-affirmed Velasco’s
“tangential influence” approach in United States v. Bolton,
977 F.2d 1196, 1199 (7th Cir. 1992). Ours is not the only
circuit to adopt this approach to Kastigar immunity. See,
e.g., United States v. Schmidgall, 25 F.3d 1523, 1529 (11th Cir.
1994) (“[T]his Circuit has adopted the ‘evidentiary’ inter-
pretation of Kastigar: that the focus of a challenge on
self-incrimination grounds should be on the direct and
indirect evidentiary uses of immunized testimony,
rather [than] on non-evidentiary matters such as the
exercise of prosecutorial discretion.”).
Cozzi argues that the Supreme Court’s decision in
United States v. Hubbell, 530 U.S. 27 (2000), upset our
“tangential influence” line of cases. In Hubbell, the gov-
ernment made several broadly worded discovery re-
quests, with which the defendant refused to comply
8 No. 09-2648
because some of the documents might have been incrimi-
nating. When the government gave the defendant im-
munity “to the extent allowed by law,” the defendant
provided more than 13,000 pages to the prosecutor. Id.
at 31. The prosecutor later prepared new charges against
the defendant based on information gleaned from the
produced documents that was previously unknown to
the prosecutor. Id. The Court held that the indictment
had to be dismissed because “the testimonial aspect of
respondent’s act of producing subpoenaed documents
was the first step in a chain of evidence that led to this
prosecution.” Id. at 42. Important to the Court’s conclu-
sion was the fact that “[i]t was only through respondent’s
truthful reply to the subpoena that the government re-
ceived the incriminating documents of which it made
substantial use . . . in the investigation that led to the
indictment.” Id. at 42-43 (internal quotation marks and
footnote omitted) (second alteration in original).
Against this backdrop, Cozzi argues that his convic-
tion should be overturned because he claims that his
statements were improperly used against him. Cozzi’s
theory on appeal of who used his statements improperly
has gradually expanded from initial briefing to oral
argument. In his initial brief, in which he had the oppor-
tunity to define the scope of the appeal, Cozzi argued
only that Weis’s tip to the FBI constituted an improper
use of his protected statements. But in his reply brief,
Cozzi added a complaint that the federal prosecutors
may have been exposed to, and thus afforded the oppor-
tunity to improperly use, his protected statements be-
cause the OPS file contained references to his statements,
No. 09-2648 9
although the statements themselves had been removed
from the file. Then, at oral argument Cozzi added the
OPS investigators to his list, arguing that the govern-
ment had not met its burden to show that the OPS in-
vestigators had not made improper use of his statements
in conducting their investigation.
An appellant cannot raise new theories or issues in a
reply brief or at oral argument, United States v. Wescott, 576
F.3d 347, 354 (7th Cir. 2009) (reply brief); Holman v. Indiana,
211 F.3d 399, 405-06 (7th Cir. 2000) (oral argument), so
Cozzi has waived any complaint he may have had
about the government meeting its burden regarding the
federal prosecutors and OPS investigators. To the extent
that Cozzi was justified in failing to mention his com-
plaint about the federal prosecutors’ exposure because
certain documents were sealed until after his initial brief
was due, we find that references to Cozzi’s statements
in the OPS files did not expose the prosecutors improp-
erly to the content of Cozzi’s protected statements. Al-
though the OPS report does negate various aspects of
Cozzi’s testimony, it appears that the specific facts men-
tioned are derived from statements that Cozzi made in
unprotected reports. The one statement that came directly
from his protected statement was appropriately redacted
and gives us no further cause for concern.
Turning now to Cozzi’s argument regarding Weis, we
find that Weis’s tip to the FBI did not constitute an im-
proper use of Cozzi’s protected statement. As an initial
matter, we note that the question of whether Weis re-
viewed Cozzi’s protected statements remains unan-
10 No. 09-2648
swered because the government did not see fit to submit
an affidavit from Weis explaining what he did or did not
read. We also do not know, although we may speculate,
why Weis referred Cozzi’s case to the FBI. Because the
government bears the burden to prove that the state-
ments were not improperly used, we think it fair to
assume for purposes of this appeal that Weis read the
protected statements, and we may even assume that
he was motivated to email his colleagues at the FBI
because of what the protected statements contained.
However, those assumptions do not end our inquiry
into whether Cozzi’s statements were improperly used,
thus requiring us to overturn his conviction.
There is no question that Kastigar bars not only eviden-
tiary use of compelled testimony but also non-evidentiary,
or derivative, use of the same. At issue here is the scope
of derivative-use immunity. The case law does not say
that a defendant’s immunized statements may never
be used by anyone under any circumstances. Garrity, for
example, clearly contemplated that the officers’ com-
pelled testimony could be used for internal investigation
purposes. 385 U.S. at 500 (noting that the Fourteenth
Amendment only prohibited the use of coerced state-
ments in “subsequent criminal proceedings”). Here, there
is no question that OPS was well-within the bounds of the
law to compel Cozzi’s testimony and use it for its own
limited investigatory purposes. The question, then, is
not simply whether the statements were used; rather, the
constitutional guarantee that a defendant be free from
compelled self-incrimination is concerned with how and
by whom the statements are used.
No. 09-2648 11
Kastigar immunity is primarily concerned with the
prosecutor’s use of compelled testimony because it is
the prosecutor who actually initiates and pursues
criminal proceedings against a defendant. Thus, Kastigar
held that use or derivative-use immunity is co-extensive
with the Fifth Amendment privilege because it “prohibits
the prosecutorial authorities from using the compelled
testimony in any respect . . . .” 406 U.S. at 453 (emphasis
added); see also id. at 462 (“We conclude that the
immunity provided by 18 U.S.C. § 6002 leaves the wit-
ness and the prosecutorial authorities in substantially the
same position as if the witness had claimed the Fifth
Amendment privilege.” (emphasis added)). The Court
has also held that “a state witness may not be compelled
to give testimony which may be incriminating under
federal law unless the compelled testimony and its fruits
cannot be used in any manner by federal officials in
connection with a criminal prosecution against him.” Murphy
v. Waterfront Comm’n of N.Y., 378 U.S. 52, 79 (1964) (empha-
sis added). Cozzi appears to agree with this general
proposition. (See Appellant’s Br. at 12) (“The prosecution
is wholly precluded from making any direct use, or deriva-
tive use, of compelled testimony.” (first emphasis added)).
The fact that the prosecution bears the burden to prove
that all of its evidence comes from legitimate sources
bolsters our understanding that the prosecution is the
number-one concern of Kastigar immunity. Velasco, 953
F.2d at 1474.
Cozzi has not brought to our attention a single case
where a non-prosecutor’s use of a compelled statement,
by itself, was held to be a violation of the defendant’s
12 No. 09-2648
Fifth Amendment privilege. To be sure, the government
has not cited any cases where a non-prosecutor’s use of
a compelled statement was held not to be a violation of
the defendant’s Fifth Amendment privilege. But see id. at
1474 (concluding that the prosecutor’s use, if any, of
protected statement was not improper). The dearth of
cases in either category further supports the proposi-
tion that it is the prosecutor’s use of a compelled state-
ment that is of primary concern.
That is not to say that other individuals’ use of pro-
tected statements cannot run afoul of a defendant’s im-
munity rights. See, e.g., United States v. North, 920 F.2d 940,
942 (D.C. Cir. 1990) (“Kastigar is . . . violated whenever
the prosecution puts on a witness whose testimony is
shaped, directly or indirectly, by compelled testimony,
regardless of how or by whom he was exposed to that
compelled testimony. Were the rule otherwise, a private
lawyer for a witness sympathetic to the government
could listen to the compelled testimony and use it to
prepare the witness for trial. The government would
presumably thereby gain the advantage of use of the
immunized testimony so long as it did not actually cooper-
ate in that effort.”); In re Corrugated Container Antitrust
Litigation, 644 F.2d 70, 76-77 (2d Cir. 1981) (finding that
a prosecutor cannot use answers by a witness to ques-
tions posed by a civil litigant if those questions were
derived from a protected statement). But the limits on
use by non-prosecutors must be understood in terms of
their relationship to the prosecutor’s actions in future
criminal proceedings. After all, immunity is concerned
with “insur[ing] that the testimony cannot lead to the
No. 09-2648 13
infliction of criminal penalties on the witness.” Kastigar,
406 U.S. at 453.
Turning now to the facts before us, Cozzi argues that
Weis’s tip to the FBI was an impermissible use of his
protected statements because “but for” Weis’s tip there
would not have been a federal investigation and indict-
ment. Cozzi argues that, like the compelled discovery
documents in Hubbell, Weis’s tip was the first step in a
chain of evidence that led to criminal proceedings
against him. We disagree. We find that Weis’s tip alone,
without communicating the substance of Cozzi’s state-
ments to federal officials, does not constitute an imper-
missible non-evidentiary use of the compelled statement.
We are not concerned with how Weis may have influ-
enced the federal investigation, but rather how Cozzi’s
statements influenced the investigation. When framed
properly, it is clear that Cozzi’s statements could not
have had even a tangential influence on the federal prose-
cutors. Weis did not tell his former colleague at the
FBI what Cozzi’s statements contained, and we do not
think that simply saying a statement was “falsified,” by
itself, is enough to impute improper use of the statement
to prosecutorial authorities. Cf. Bolton, 977 F.2d at 1199(noting that the defendant’s “denials of wrongdoing and
assertions that the witnesses at the first trial had lied . . .
[could not] have been much help to the prosecution”).
We do not ignore that Weis’s standing as a former FBI
agent and as the incoming head of the Chicago Police
Department most likely weighed heavily in the FBI’s
decision to start an investigation. But Weis’s resumé does
14 No. 09-2648
not alter the fact the FBI had to start its investigation
into Cozzi from scratch. Weis’s emails, devoid of any
details about Cozzi’s protected statements, provided
federal authorities with no evidentiary leads or other
information that they could use to focus their investiga-
tion. In other words, the federal officials were “ ‘in sub-
stantially the same position as if [Cozzi] had claimed
his privilege in the absence of a grant of immunity.’ ”
Hubbell, 530 U.S. at 40 (quoting Kastigar, 406 U.S. at 458-
59). Under these circumstances, we find that whatever
influence Cozzi’s protected statements may have had on
Weis, the government has proven that the statements
played no prohibited role in the federal investigation
into Cozzi or his subsequent prosecution.
We are not persuaded by Cozzi’s argument that Hubbell
compels a different outcome. We read Hubbell as an
affirmation of the doctrine, fully explained in Kastigar,
406 U.S. at 460, that the government bears the burden of
proving “ ‘that the evidence it proposes to use is derived
from a legitimate source wholly independent of the
compelled testimony.’ ” See Hubbell, 530 U.S. at 40(quoting Kastigar, 406 U.S. at 460). The prosecutors in
Hubbell failed to meet their burden of proving that the
evidence leading to the subsequent charges against the
defendant did not come from a wholly legitimate source
other than the defendant’s protected statement. Id. at 44-
45. The Court said that because the defendant’s com-
pelled disclosure was the first step in the chain of evi-
dence that led to the criminal charges against him, the
prosecution violated his Fifth Amendment privilege.
Id. at 42. Nothing in the language of Hubbell upsets our
No. 09-2648 15
view of Kastigar immunity as explained in Velasco and
Bolton.
Here, the chain of evidence was cut off between
Weis and federal investigators because Weis did not com-
municate any of the contents of the statements in his
email. What’s more, in Hubbell it was the defendant’s
protected statement itself that prompted the federal
investigation. Here, it was not the statement itself but a
tip by a third party that prompted the investigation. As
discussed above, we evaluate a non-prosecutor’s use of
protected testimony only as it relates to actual criminal
proceedings against the defendant. Whatever role the
statements might have had in motivating Weis’s tip is
at least one step too far removed from the actual federal
investigation and prosecution to justify overturning
Cozzi’s conviction. On the facts before us, we conclude
that the compelled statements, if they had any influence
at all, could have had only a tangential influence on
the federal investigation and prosecution.
Finally, we do not think that our decision today
hearkens back to the now repudiated “silver platter”
doctrine. That phrase arises from the practice of state
law enforcement officials obtaining evidence in violation
of a defendant’s constitutional rights and then handing
it over to federal prosecutors, who were permitted to
use the evidence because they were not the wrongdoers.
The practice has since been repudiated in no uncertain
terms. See Elkins v. United States, 364 U.S. 206, 223 (1960). A
tip by a third party, even one whose tip carries great
weight, is not the same as handing over unconstitu-
16 No. 09-2648
tionally obtained evidence to the federal government to
use in criminal proceedings against the defendant. We
think there is a meaningful difference between Weis
telling the FBI that it ought to consider investigating
Cozzi and Weis telling the FBI the substance of Cozzi’s
protected statements. For the reasons stated above we
find that the government has met its heavy, but not
insurmountable, burden of proving that all of its evi-
dence came from legitimate sources.
B. Applicable Sentencing Guideline
Cozzi also argues that the district court should have
used the civil rights guideline, rather than the aggravated
assault guideline, to calculate the base offense level for
sentencing purposes. A court sentencing a defendant
guilty of violating 18 U.S.C. § 242 starts with § 2H1.1 of
the sentencing guidelines. To calculate the correct base
offense level, § 2H1.1 directs the court to apply the
greatest of either—as applicable here—“the offense level
from the offense guideline applicable to any underlying
offense” or “10, if the offense involved (A) the use or
threat of force against a person . . . .” Subsection (b)
increases the base offense level by 6 levels “[i]f (A) the
defendant was a public official at the time of the offense;
or (B) the offense was committed under color of law . . . .”
Application Note 1 of § 2H1.1 defines the “Offense guide-
line applicable to any underlying offense” as “the offense
guideline applicable to any conduct established by the
offense of conviction that constitutes an offense under
federal, state, or local law (other than an offense that is
itself covered under Chapter Two, Part H, Subpart 1).”
No. 09-2648 17
The government urged the district court to use § 2A2.2
of the sentencing guidelines to calculate Cozzi’s base
offense level. Section 2A2.2 applies to “aggravated as-
sault,” which is defined as “a felonious assault that in-
volved (A) a dangerous weapon with intent to cause
bodily injury (i.e., not merely to frighten) with that
weapon; (B) serious bodily injury; or (C) an intent to
commit another felony.” U.S.S.G. § 2A2.2, Application
Note 1. The government argued that the conduct to
which Cozzi pled guilty fell squarely within the defini-
tion of aggravated assault—namely, that Cozzi re-
peatedly struck Miles in the face with a sap—a dangerous
weapon. The district court adopted the government’s
(and the pre-sentence report’s) recommendation to use
§ 2A2.2 to calculate the base offense level.
The district court correctly applied the sentencing
guidelines in calculating the appropriate sentencing
range for Cozzi. The plain language of § 2H1.1 directs a
court to apply the sentencing guideline applicable to
the underlying offense (here, aggravated assault) if it
would produce a greater base offense level than the base
offense level premised solely on § 2H1.1. In this regard,
§ 2H1.1 “provides a floor, not a ceiling.” United States v.
Byrne, 435 F.3d 16, 27 (1st Cir. 2006). The sentencing
guidelines recognize that in a situation, as here, where
the defendant’s conduct is more reprehensible than a
civil rights violation that used a minor amount of force,
the defendant’s sentence should be on par with other
defendants in federal court who committed similar
conduct under federal jurisdiction. Id.18 No. 09-2648
Cozzi argues that the district court’s use of § 2A2.2
was also improper because there was no underlying
offense due to the fact that he was only charged with
and pled guilty to one count, a civil rights violation. But
the fact that there is only one count in his indictment
does not eliminate Cozzi’s conduct—he could only
violate Miles’s civil rights by doing something. It is
that something that constitutes the underlying offense
for purposes of § 2H1.1, regardless of how many sub-
stantive counts with which Cozzi was charged.
Cozzi also argues that because § 2H1.1 takes into
account aggravating factors, there was no need to resort
to § 2A2.2. Cozzi is correct that both § 2H1.1 and § 2A2.2
could account for his underlying conduct. However,
the plain language of § 2H1.1 specifically directs the
district court to use the guideline that produces the
greatest base offense level. Section 2A2.2 produces a
higher base offense level than § 2H1.1, so the district
court was correct in using the former section as a
starting point for calculating Cozzi’s appropriate sen-
tencing range.
Cozzi also argues that the aggravated assault guideline
was not intended to cover civil rights violations because
it does not mention 18 U.S.C. § 242 as an applicable
code section and a civil rights violation is not like the
other substantive crimes specifically mentioned. Of
course, here the cross-reference comes from the civil
rights guideline and not the aggravated assault guide-
line. There are myriad ways to violate someone’s civil
rights, so as a matter of policy and economy it makes
No. 09-2648 19
sense to have a single, flexible cross-reference in the
civil rights guideline, rather than include a reference to
the civil rights guideline in every conceivable section
covering conduct that might also violate a victim’s
civil rights.
Cozzi’s argument that using the aggravated assault
guideline will produce sentencing disparities between
him and other civil rights violators is without merit.
Section 2H1.1 is in fact designed to ensure that there are
no sentencing disparities between someone who com-
mits aggravated assault and someone who commits
aggravated assault that also violates the victim’s civil
rights. With a view toward the underlying conduct, there
is no risk that referencing the aggravated assault guide-
line here will result in Cozzi receiving a sentence inap-
propriately disparate from other similarly situated de-
fendants.
Finally, Cozzi argues that the aggravated assault guide-
line does not apply to him because he only pled guilty to
a misdemeanor in state court and the guideline is
expressly limited to “felonious assault.” It is Cozzi’s
conduct, however, and not his state court plea that con-
stitutes the underlying offense for purposes of § 2H1.1.
See U.S.S.G. § 2H1.1, Application Note 1. In his federal
plea agreement, Cozzi acknowledged that he hit Miles
in the face with a dangerous weapon. He can make no
serious argument that the conduct to which he pled guilty
does not constitute felonious assault, his bargain
in state court notwithstanding. Accordingly, the dis-
trict court did not err in finding that § 2A2.2 was ap-
plicable to Cozzi’s underlying offense.
20 No. 09-2648
III. C ONCLUSION
There was no improper use of Cozzi’s immunized
statements, and the district court correctly calculated the
applicable guideline range. We therefore A FFIRM Cozzi’s
conviction and sentence.
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