USA v. Walsh

• Decision Date: 01 August 1998
• Docket Number: Docket No. 98-1648
• Parties: (2nd Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. JOHN WALSH, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 37

194 F.3d 37 (2nd Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. JOHN WALSH, Defendant-Appellant.

Docket No. 98-1648

August Term, 1998

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: June 30, 1999

Decided: October 19, 1999

Appeal from a judgment entered following a jury trial in the United States District Court for the Western District of New York (John T. Curtin, Judge), convicting the defendant on three counts of violating 18 U.S.C. 242. We hold that the indictment was sufficient, the District Court did not exceed its allowable discretion in denying the defendant's pretrial motion, the evidence at trial was sufficient to establish a constitutional violation and guilt beyond a reasonable doubt, and there was no reversible error in the instruction to the jury.

Affirmed.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] PAUL J. CAMPANA, Assistant United States Attorney for the Western District of New York, Buffalo, NY (Denise E. O'Donnell, United States Attorney, of counsel), for Appellee.

MARK R. UBA, Connors & Vilardo, LLP, Buffalo, NY (Terrence M. Connors, of counsel), for Defendant-Appellant.

Before: KEARSE, STRAUB, and POOLER, Circuit Judges.

STRAUB, Circuit Judge:

Defendant John Walsh appeals from a judgment entered following a jury trial in the United States District Court for the Western District of New York (John T. Curtin, Judge), convicting him on three counts of violating 18 U.S.C. 242, which makes it a criminal act to willfully deprive a person of rights protected by the Constitution or laws of the United States, while acting under color of law.

On appeal, Walsh raises several challenges to his conviction. First, he contends that his conviction violated his Fifth and Sixth Amendment rights in that the indictment under which he was found guilty was insufficient in its notice and particularity, failed to ensure that he was not convicted on evidence not presented to the grand jury, was multiplicitous and duplicitous, and failed to protect him against double jeopardy. Given these deficiencies in the indictment, Walsh argues that the District Court should have dismissed the indictment pretrial or, in the alternative, that the District Court abused its discretion in denying his pretrial motion for a bill of particulars. Second, Walsh argues that the evidence presented at trial was insufficient to establish a constitutional violation under 242 in that it failed to demonstrate that: (1) his alleged actions constituted "punishment" prohibited by the Eighth or Fourteenth Amendments; (2) he caused an injury of constitutional dimension; or (3) he was acting "under color of law" at the time of the alleged incidents. Third, Walsh argues that the evidence presented at trial was insufficient to establish his guilt beyond a reasonable doubt. Finally, Walsh contends that the court's instruction to the jury was erroneous in several respects.

Having considered all the arguments, we affirm.

BACKGROUND

On January 4, 1996, a grand jury returned a one-count indictment against Lieutenant John Walsh, a Corrections Officer at Orleans County Jail in Albion, New York. The indictment charged Walsh with a single violation of 18 U.S.C. 242, for violating the Eighth Amendment right of Norvin Fowlks, an inmate at that facility, to be free from cruel and unusual punishment. The indictment alleged that Walsh stepped on Fowlks's penis on a date between January 4, 1991 and March 8, 1991, while Fowlks was inside a jail cell, causing him unnecessary and wanton pain.

Walsh moved, inter alia, to dismiss the initial indictment due to insufficiency of proof before the grand jury and, in the alternative, moved for a bill of particulars. Upon the recommendation of Magistrate Judge Hugh B. Scott, the District Court denied those motions.

On May 2, 1996, the same grand jury returned a first superseding indictment adding two additional counts under 242. Count I of the first superseding indictment remained unchanged. Count II alleged that, in violation of the Eighth Amendment, Walsh stepped on Fowlks's penis sometime between May 26, 1992 and December 1, 1992, while Fowlks was in a jail cell, causing unnecessary and wanton pain. Count III alleged that, again in violation of the Eighth Amendment, Walsh stepped on Fowlks's penis sometime between May 26, 1992 and July 22, 1992, while Fowlks was lying on the floor of a jail cell, causing him unnecessary and wanton pain.

Walsh again moved, inter alia, to dismiss the first superseding indictment arguing that the three counts in the indictment charged essentially identical acts occurring within broad and sometimes overlapping time periods and, therefore, that the indictment: (1) failed to provide him with adequate notice of the conduct charged; (2) failed to protect him against double jeopardy; and (3) was fatally multiplicitous and/or duplicitous. In the alternative, Walsh moved for a bill of particulars.

In response to Walsh's motion, the government submitted the affidavit of Assistant United States Attorney Paul J. Campana ("Campana Affidavit"), detailing the discovery that had been provided to the defendant before the motion to dismiss was filed. In particular, the government: (1) identified the names of each witness to each count; (2) explained the rationale for each given date range for the alleged events; and (3) specified the location of each alleged incident, and the fact that Counts I and II allegedly occurred in the same cell, but Count III occurred in a different cell. In a written opinion, the District Court adopted the second report of the Magistrate Judge recommending the denial of Walsh's motion to dismiss the first superseding indictment and the request for a bill of particulars.

On August 21, 1997, the same grand jury returned a second superseding indictment (the "Indictment"), which changed the wording of Count I. ¹ The defendant was tried on the Indictment.

The evidence, viewed in the light most favorable to the government, showed the following:

As to Count I of the Indictment, the government offered the testimony of former Orleans County Corrections Officer Joseph Kujawa. Kujawa testified that one night Walsh was walking in front of him in the ground-floor booking area, a narrow corridor flanked by four holding cells on one side and a booking room on the other. Fowlks was in the cell at the far end of the corridor. This cell was different from the others because it had no toilet-sink fixture. Fowlks was kept in that cell often as punishment for making excessive noise, disturbing other prisoners, or other misconduct.

Kujawa heard Fowlks shout repeatedly, "Big Jack, give me a cigarette." Walsh, who was six feet, two inches tall and weighed over 300 pounds, walked to the front of Fowlks's cell and said, "[A]ll right Norvin, you know what you got to do, on your knees ." Fowlks, who was naked inside the cell, dropped to his knees. Walsh then said, "[O]kay, put your dick on the bars," and Fowlks placed his penis on a horizontal steel plate of the bars. Walsh then grabbed two vertical cell bars with his hands, raised his right foot, and placed it on Fowlks's penis for a few seconds, as if he were climbing a ladder. Fowlks screamed and "[h]is mouth was wide open, his eyes were almost, you know, bugging out of his head, you could [see] the white all [the] way around his eyes." Fowlks's scream was "as loud or louder" than the screams Kujawa had heard at the scenes of motor vehicle accidents he had investigated. Walsh then gave Fowlks a cigarette.

Kujawa testified that he did not report the incident initially because he would have had to report it to the warden, Captain Charles Dingman, and he was afraid of retaliation because the warden and Walsh were good friends. Moreover, Kujawa knew that the warden also "tormented" Fowlks and "it was a game between [Walsh and the warden] to torment Norvin." For example, the warden would say to Fowlks, "[S]uck your dick for a cigarette," and Fowlks would, and the warden would give him a cigarette. Kujawa also did not call for medical attention after the incident because Fowlks stopped screaming immediately after the incident and began smoking the cigarette so that "whatever pain there was seemed to me to be subsiding."

Kujawa remembered that the incident he witnessed occurred after January 3, 1991, the day his classes resumed from holiday break at the Police Academy. The latest the incident could have occurred was March 10, 1991, the day Kujawa resigned to join the Village of Medina police force. Through other deductions, Kujawa was further able to conclude that the incident occurred on one of seven days when he did not have classes at the academy, between January 18 and February 19, 1991.

Corrections Officer Paul Sidari and former Corrections Officer Timothy Bourke testified as to Count II of the Indictment. Both officers testified that, in 1992, they saw Walsh step on Fowlks's penis as Fowlks stood in the same ground-floor holding cell where Kujawa saw Walsh assault Fowlks in 1991.

Sidari heard Fowlks ask Walsh for a cigarette. Walsh was holding a cigarette and slapped the clenched fist of one hand into the open palm of the other and said to Fowlks, "[W]ho am I? Who am I?" Fowlks yelled back, "hammer Jack, hammer Jack." Walsh then told Fowlks to "put his dick on the bars." Fowlks, in a standing position, placed his penis on a horizontal steel plate on the bars. Walsh then grabbed two vertical cell bars with his hands, raised his right foot, placed it on Fowlks's penis for "[s]econds," ² while rocking up and down with his foot in that position. Fowlks "screamed in pain" during the incident and "rolled back into his cell" after Walsh removed his foot. Sidari did not see Bourke during the incident but saw him standing in the hall of the booking area just before and just after the incident.

Bourke described the assault much as Sidari did. He remembered Fowlks, in a standing position, begging...