33 F.3d 639 (6th Cir. 1994), 93-5608, United States v. Lanier

Docket Nº:93-5608.
Citation:33 F.3d 639
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David W. LANIER, Defendant-Appellant.
Case Date:August 31, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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33 F.3d 639 (6th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

David W. LANIER, Defendant-Appellant.

No. 93-5608.

United States Court of Appeals, Sixth Circuit

August 31, 1994

Argued Aug. 9, 1994.

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Jessica D. Silver, Thomas E. Chandler (argued and briefed), U.S. Dept. of Justice, Civ. Rights Div., Appellate Section, Washington, DC, for plaintiff-appellee.

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Wayne Emmons (argued and briefed), Memphis, TN, for defendant-appellant.

David W. Lanier, pro se.

Before: KEITH and MILBURN, Circuit Judges; and WELLFORD, Senior Circuit Judge.

MILBURN, Circuit Judge, delivered the opinion of the court, in which KEITH, Circuit Judge, joined. WELLFORD, Senior Circuit Judge (p. 666), delivered a separate concurring opinion.

MILBURN, Circuit Judge.

Defendant David W. Lanier appeals his jury convictions, and the sentences imposed thereon, of seven counts of the willful deprivation under color of law of the civil rights of various female individuals in violation of 18 U.S.C. Sec. 242. On appeal, the issues are (1) whether the government proved the essential elements of 18 U.S.C. Sec. 242 beyond a reasonable doubt; (2) whether the district court abused its discretion in refusing to sever the trials of the charges against defendant; (3) whether the district court erred in refusing to dismiss the indictment on the ground that it failed to give notice to the defendant of the charges he was required to defend; (4) whether the district court erred in refusing to dismiss the indictment on the ground that the statute, 18 U.S.C. Sec. 242, was impermissibly vague; (5) whether the district court erred in excluding evidence concerning the prior sexual activity and prior drug use of one of the witnesses, Vivian Archie; (6) whether the district court abused its discretion in refusing to grant a one-day continuance of the trial because a local newspaper containing a story about the case was found in the jury room prior to the commencement of the trial; (7) whether the district court erred in failing to grant a mistrial based upon the prosecutor's opening statement; (8) whether the prosecutor committed prosecutorial misconduct in his closing argument by improperly vouching for prosecution witnesses, making inflammatory statements, and calling the defendant names; (9) whether the defendant was denied a fair trial by prosecutorial misconduct throughout the trial process; (10) whether the jury instructions were improper and prejudicial; (11) whether the district court erred in enhancing defendant's sentence for obstruction of justice under United States Sentencing Guideline ("U.S.S.G.") Sec. 3C1.1; (12) whether the district court erred in imposing a fine and costs of incarceration; (13) whether the district court erred in determining defendant's base offense level; (14) whether the sentence imposed by the district court was disproportionate to the offenses under the Eighth Amendment; and (15) whether the district court erred in refusing to depart downward from the applicable sentencing guidelines under U.S.S.G. Sec. 5K2.0. For the reasons that follow, we affirm.

I.

On May 20, 1992, a federal grand jury indicted defendant on 11 counts of violating 18 U.S.C. Sec. 242. At the time of the indictment, defendant was the elected chancery court judge for Dyer and Lake Counties in Tennessee, where he also served as juvenile court judge. As the only chancellor and juvenile court judge in said counties, all of the employees of each of the courts, including secretaries, clerks, and juvenile officers, worked at the pleasure of defendant Lanier.

The indictment alleged that between 1988 and 1991, defendant sexually assaulted eight women who either worked for him at the state chancery court, worked for or with him in the juvenile court of Dyer County, or had a case pending before defendant. Count 1 of the indictment alleged that in July 1988, defendant, acting under color of state law, sexually assaulted Patricia Wallace, 1 an employee of the Circuit Court of Dyer County, depriving her of her liberty without due process; namely, the right to be free of sexual assault. The indictment alleged that defendant willfully touched Wallace on and near her crotch and otherwise molested her.

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Counts 2 and 3 of the indictment similarly alleged that during the period from May to August 1989, defendant sexually assaulted Sandra Sanders, an employee of the Dyer County Juvenile Court. The indictment alleged that defendant willfully grabbed Sanders' breasts and buttocks and otherwise molested her.

Counts 4 and 5 of the indictment similarly alleged that in either September or October 1990, defendant sexually assaulted Patty Mahoney, an employee of the Chancery Court of Dyer County. The indictment alleged that defendant willfully grabbed Mahoney's breasts and buttocks, touched his pelvis to her body, and otherwise molested her.

Counts 6 and 7 of the indictment likewise alleged that in September 1990 (Count 6) and again in October 1990 (Count 7) defendant sexually assaulted Vivian Archie by willfully coercing her to engage in sexual acts with defendant Lanier, which resulted in bodily injury to her. Count 8 of the indictment also similarly alleged that during the period from February through May 1991, defendant sexually assaulted Sandy Attaway, an employee of the Chancery Court of Dyer County, by willfully touching his pelvis to her buttocks and otherwise molesting her.

Similarly, count 9 of the indictment alleged that in either February or March 1991, defendant sexually assaulted Ruby Sipes by willfully exposing his genitals to her and urging her to engage in sexual acts with him. Count 10 of the indictment similarly alleged that in April 1991, defendant sexually assaulted Lisa Couch by willfully coercing her to engage in sexual acts with him, resulting in bodily injury to her. Finally, count 11 of the indictment similarly alleged that in September 1991, defendant assaulted Fonda Bandy by willfully grabbing her breasts and crotch, and otherwise molesting her.

Defendant's trial began on November 30, and concluded on December 16, 1992. The evidence presented at trial showed that defendant was born in Dyer County, Tennessee, and had lived there virtually all his life. Defendant is from a politically prominent family. He served as alderman and mayor of Dyersburg, Tennessee, before first being elected Chancery Court Judge of the Twenty-Ninth Judicial District in 1982. Defendant was reelected in 1990. He continued to serve as a chancery court judge until he was removed from his position pending resolution of this case.

As a chancery court judge, defendant principally presided over divorces, probate matters, and boundary disputes. Although the circuit court also has concurrent jurisdiction along with chancery court over divorce cases, defendant presided over 80 to 90 percent of the divorce cases in Lake and Dyer Counties, including child support and other matters related to the divorce cases. Further, as earlier stated, defendant also served as juvenile court judge in said counties.

In 1989, defendant hired Sandy Sanders to be the Youth Service Officer of the Dyer County Juvenile Court. Sanders was to supervise the Youth Service Office. During her job interview, defendant told Sanders that he had sole hiring authority for the Youth Service Officer position. Defendant also had the authority to fire the Youth Service Officer.

As part of her job duties, Sanders was required to have weekly meetings with defendant to review the work performed by her office. During one of these weekly meetings, which occurred in defendant's chambers, defendant got up from his desk, sat beside Sanders in a chair, and, during their conversation, grabbed and squeezed her breast. Sanders became upset and tried to remove defendant's hand; however, defendant told her not to be afraid.

Sanders left the meeting as quickly as possible. She did not tell anyone about what had occurred because she thought that no one would believe her since defendant was a judge and was influential in the community. Subsequently, Sanders telephoned defendant and told him she needed to meet with him. She went to defendant's chambers, told him she did not appreciate his actions, and received an apology from him.

Sanders continued to have weekly meetings with defendant. However, after she confronted him about his actions, he began complaining about the quality of her work, and, eventually, he took away her supervisory

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authority. Sanders testified that she believed defendant took away her supervisory authority in retaliation for her confrontation with him. She testified that she considered quitting her job, but she remained in her position because she believed she was helping the children she worked with.

Defendant testified that he was often alone with Sanders in his chambers; however, he denied ever touching her breast. He testified that prior to the alleged incident, he and Sanders would hug and kiss each other as a friendly greeting. Defendant testified that he stopped such behavior after Sanders told him she was no longer comfortable hugging him.

In the fall of 1990, defendant hired Patty Mahoney to be his secretary. Mahoney was recently divorced and had two young children to support. Mahoney understood that defendant was her supervisor and had the power to fire her. Mahoney was uncomfortable with defendant because she felt that he had inappropriately hugged her during her job interview. However, she accepted the job because, for a person without a college degree, it was a good job...

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