Convicted dealer loses appeal
An Altoona-area man who alleged state police drug investigators violated his Fourth Amendment rights during his arrest and interrogation as the leader of a marijuana distribution ring more than a decade ago has lost his appeal of a jury verdict in a civil case that found for the state troopers.
The U.S. 3rd Circuit Court of Appeals in an opinion issued last week upheld dismissal of the appeal that was filed by Kevin Patrick Flood, who was convicted of drug offenses and sentenced to 15 years behind bars, plus eight years’ supervision by U.S. District Judge Kim R. Gibson in Johnstown.
Flood’s trial and sentencing occurred in 2007.
Before his trial, Flood, now 61, contended in a civil lawsuit that he was roughed up by state police who entered his Logan Township home on Easter morning 2004.
Police used a confidential informant to put together a case against Flood and timed their entry into the home following delivery of more than 500 pounds of marijuana by Flood’s source from Oregon.
Flood contended that police were able to manipulate him through the informant who, he said, gave him OxyContin and fentanyl for severe back pain from which he was suffering.
The defendant also had many complaints about the way state police allegedly treated him after his arrest.
For instance, he complained police interrogated him for 10 hours during which time he was cuffed in such a manner that he experienced “excessive pain and suffering” from his back.
In his civil lawsuit that he filed in 2006, he claimed his Fourth Amendment right to be free from excessive force had been breached.
He also charged that police made illegal entry into his home, planted evidence, tampered with evidence and submitted him to cruel and unusual punishment.
Part of the evidence against Flood included surveillance tapes and tapes of “weeks of conversations” between Flood and the confidential informant.
Although he received copies of the tapes prior to his trial, Flood contended they had been tampered with and that conversations between him and the informant about his back pain had been eliminated.
He was trying to show police knew about his bad back and were able to take advantage of his condition during interrogation.
A three-judge panel of the U.S. 3rd Circuit in its opinion last week pointed out that the tape issue eventually ended up with Flood contending that his attorneys had “sold him out” and covered up the tampering that he claims occurred.
He also contended that Judge Gibson and
the Assistant U.S. Attorney John Valkovci in Johnstown condoned the tampering.
Gibson ruled that Flood was entitled to the tapes but ruled his claim “that the tapes were altered by his court-appointed counsel to be ‘utterly baseless.'”
A federal court jury found Flood guilty of conspiracy to possess and distribute marijuana, possession with intent to distribute and the illegal possession of a firearm by a felon.
During his sentencing hearing on Nov. 20, 2007, it was revealed that Flood had a lengthy criminal record, but Gibson, in sentencing him, rejected a prosecution request to designate him as an “armed career criminal” and sentenced him to 15 years in a federal prison.
The Federal Inmate Locator shows Flood was released from custody three years ago.
His Greensburg attorney argued that Flood experienced a “rough childhood” and as an adult had lost two children, leading to depression.
Meanwhile, Flood’s civil lawsuit lingered, but finally came to trial on April 13, 2017, in the courtroom of U.S. District Judge Nora Barry Fischer.
A jury found in favor of the three state police troopers that remained on the complaint.
Flood filed an appeal, his fourth before the 3rd Circuit.
The appeal charged that the civil court judge committed “reversible error” by denying him access to the original audio tapes.
The 3rd Circuit panel pointed out that issue was litigated and settled on prior occasions.
He claimed on appeal that the trooper who supervised the drug investigation, Charles Schaefer, admitted conversations were “missing” from the tapes, but the 3rd Circuit panel clarified that the testimony showed portions of the tapes were “inaudible,” a finding that was originally made by Judge Gibson.
Flood charged that Judge Gibson should have recused himself from the civil case because of his rulings on the tape issue.
The 3rd Circuit panel, including Judges Michael A. Chagares, Stephanos Bibas and Morton I. Greenberg, found no abuse of discretion by the trial judge.
“The majority of Flood’s arguments amount to dissatisfaction with Judge Gibson’s ruling, which is an inadequate basis for recusal,” the panel stated.
“To the extent (Flood) alleges recusal was mandated because of unsubstantiated allegations of Judge Gibson’s involvement in the tape tampering conspiracy, no reasonable person, knowing all the relevant facts, would harbor doubts about Judge Gibson’s impartiality,” the ruling continued.