POTTSVILLE - A federal jury should not have convicted two former Shenandoah police officers in connection with the probe of the fatal beating of an illegal Mexican immigrant in July 2008, the officers' lawyers argued Monday.
In a 24-page brief filed with the 3rd U.S. Circuit Court of Appeals, the lawyer for William Moyer said the evidence of lying - the only one of five charges he was found guilty of committing - was legally insufficient to support the conviction, which resulted in a prison sentence, and that the conviction should be reversed.
"A rational juror could not have found all of the five necessary elements for a conviction ... beyond a reasonable doubt," Enid W. Harris, Kingston, wrote.
And in his 80-page brief filed with the same court, the lawyer for Matthew R. Nestor said the law under which he was convicted is too vague to support the conviction and the government improperly changed its theory of the case after the verdict.
"The statute lends itself to arbitrary and discriminatory enforcement," James J. West, Harrisburg, wrote.
The briefs mark the latest step in the three-year legal process surrounding the beating of Luis Eduardo Ramirez Zavala in Shenandoah.
After a 13-day trial in U.S. District Court in Wilkes-Barre, the jury found Moyer, a former lieutenant, guilty of lying to the FBI but not guilty of four other charges.
The same jury convicted Nestor, the former chief, of filing a false report in connection with the Ramirez investigation but not guilty of conspiracy, while it acquitted a former Shenandoah police officer, Jason Hayes, of both filing a false report and conspiracy.
On June 1, Senior U.S. District Judge A. Richard Caputo, who presided over the trial, sentenced Nestor to 13 months in prison and Moyer to three. Each is serving his time in Kentucky, Moyer at Federal Correctional Institution/Ashland, Nestor at Federal Medical Center/Lexington.
Federal authorities alleged they obstructed the investigation of the beating of Ramirez on July 12, 2008, on West Lloyd Street near the Vine Street Park. Ramirez, 25, of Shenandoah, died two days after the beating of head injuries at Geisinger Medical Center, Danville. His case attracted national and international attention due to issues of race, ethnicity and illegal immigration.
Prosecutors said Moyer lied to FBI agents when he said to them that witness Francis Ney told him and Hayes that there was a man with a gun near the scene of the Ramirez beating.
In the brief, Moyer alleged that the government had to prove five elements of the crime: That he made a statement, that it was material to the investigation, that it was false, that it was made knowingly and willfully, and that it was made within a matter under federal jurisdiction.
"Evidence was insufficient to prove three of the five elements," that the statement was material, that it was false and that it was made knowingly and willfully, according to the brief.
"There was no evidence that Moyer's statements were capable of influencing a reasonable decision maker," the brief reads in part.
Secondly, there was no evidence that the statement was false. While the FBI said Ney did not talk about a man with a gun during his 911 call, they could not say what he might have talked about at other times, according to the brief.
"It is likely that Ney's statements to Hayes and Moyer about the man with the gun were made immediately after he hung up the 911 call," the brief reads in part.
Finally, there was no evidence the statement was knowing and willful, according to the brief.
"The Government's evidence showed that an honest man made a mistake," the brief reads in part.
Nestor argued in his brief that the government improperly failed to state the theory under which he was charged, and Caputo abused his discretion in not forcing it to be more specific. As a result, prosecutors charged multiple crimes in one count and confused the jury, according to Nestor.
"(It) raises the possibility that (Nestor) has been convicted of something the grand jury never charged," the brief reads in part. "Nestor has been surprised, he has not been properly shielded from double jeopardy and he has been deprived of the opportunity to adequately prepare for trial."
Furthermore, there was no evidence that Nestor knowingly conspired to file false police reports, or that he knew that anything in the reports was false, according to the brief.
While the government mentioned items it said should have been included in Nestor's report - the names of the people who assaulted Ramirez, that he had been told these names, that he had been told the police department might have a conflict of interest and that he had telephone conversations with the mother of one of the suspects - there was no evidence that Nestor had a duty to include them, which is required under federal law, according to the brief.
"There was no evidence presented of a duty to disclose the ... omissions," the brief reads in part.
Finally, the law under which Nestor was prosecuted is unconstitutionally vague because it does not require proof of criminal intent, according to the brief.
"Men of common intelligence must necessarily guess at its meaning," the brief reads in part. "No one could do anything without fear of being second guessed."