U.S. v. Conatser

• Decision Date: 04 February 2008
• Docket Number: No. 06-5946.,No. 06-5694.,06-5694.,06-5946.
• Citation: 514 F.3d 508
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tommy Shane CONATSER (06-5694), Patrick Marlowe (06-5946), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

514 F.3d 508

UNITED STATES of America, Plaintiff-Appellee, v. Tommy Shane CONATSER (06-5694), Patrick Marlowe (06-5946), Defendants-Appellants.

No. 06-5694.

No. 06-5946.

United States Court of Appeals, Sixth Circuit.

Argued: December 4, 2007.

Decided and Filed: February 4, 2008.

ARGUED: Phillip L. Davidson, Nashville, Tennessee, David L. Raybin, Hollins, Wagster, Yarbrough, Weatherly & Raybin, Nashville, Tennessee, for Appellants. Angela M. Miller, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Phillip L. Davidson, Nashville, Tennessee, David L. Raybin, Patrick T. McNally, Hollins, Wagster, Yarbrough, Weatherly & Raybin, Nashville, Tennessee, for Appellants. Angela M. Miller, Jessica Dunsay Silver, United States Department of Justice, Washington, D.C., for Appellee.

Before GUY, MOORE, and GILMAN, Circuit Judges.

GUY, J., delivered the opinion of the court, in which GILMAN, J., joined. MOORE, J. (pp. 528-32), delivered a separate opinion concurring in part and concurring in the judgment.

OPINION

RALPH B. GUY, JR., Circuit Judge.

Defendants Tommy Shane Conatser and Patrick Marlowe were convicted following a jury trial on charges arising from their participation as corrections officers in a conspiracy to violate the rights of detainees and prisoners of the county jail in Wilson County, Tennessee. Conatser, who was convicted of the conspiracy charged in count 1, challenges the sufficiency of the evidence to support that conviction as well as the reasonableness of his 70-month sentence. Marlowe, the supervisor of the second shift, was convicted of conspiracy and six of the seven substantive charges brought against him. Without appealing his convictions, Marlowe raises several challenges to the life sentence imposed on count 3 for his part in the denial of necessary and appropriate medical care that resulted in the death of detainee Walter Kuntz in violation of Kuntz's civil rights. After review of the record and the arguments presented on appeal, we affirm in all respects.

I.

A. Procedural History

The investigation into the death of detainee Walter Kuntz from injuries inflicted while in custody on January 13, 2003, led to an 8-count indictment in this case. The conspiracy count alleged that between July 2001 and January 2003, Marlowe, Conatser, and codefendants Gary Hale, Robert Ferrell, and Robert Locke conspired to "injure, oppress, threaten and intimidate detainees and prisoners at the Wilson County Jail in the free exercise and enjoyment of the rights and privileges secured to them by the Constitution and laws of the United States, namely the rights not to be deprived of liberty without due process of law and to be free from cruel and unusual punishment while in official custody and detention." 18 U.S.C. § 241. It was alleged that, as the means, manner, and object of the conspiracy, the coconspirators would punish, harm, and intimidate by striking, punching, kicking, and assaulting detainees and prisoners; discuss and brag about the assaults, including keeping a tally of those individuals rendered unconscious by Marlowe; and conceal such assaults by withholding medical care and falsifying incident reports.

Nineteen overt acts were alleged in furtherance of the conspiracy—seven of which were also charged as substantive offenses. The substantive counts asserted that the various defendants, aided and abetted by each other, assaulted certain prisoners and detainees (collectively referred to as inmates) in violation of their civil rights. 18 U.S.C. §§ 242 and 2. The statute provides for enhanced penalties of (1) imprisonment for not more than 10 years "if bodily injury results, from the acts committed in violation of this section," and (2) any term of years or for life "if death results from the acts committed in violation of this section." 18 U.S.C. § 242. Both Hale and Ferrell pleaded guilty to a single count under a plea agreement and testified at trial. Locke was tried jointly with Marlowe and Conatser, but was acquitted of both conspiracy and the one substantive charge against him. Marlowe and Conatser were convicted of the conspiracy.

Central to Marlowe's appeal are his convictions on counts 2 and 3, which alleged that Marlowe and Hale, aided and abetted by each other, assaulted Kuntz (count 2) and failed to provide him with necessary and appropriate medical care (count 3) in violation of his civil rights and that their conduct resulted in bodily injury or death. The jury specifically found in convicting Marlowe that the acts at issue in the assaults that violated Kuntz's rights resulted in bodily injury (but not death), but that the acts at issue in the denial of medical care that violated Kuntz's rights resulted in Kuntz's death. As a result, the statutory penalty for Marlowe's conviction on count 3 was any term of years or life imprisonment.

Counts 4 through 8 alleged assaults on inmates that resulted in bodily injury. Specifically, the indictment charged that Marlowe, Conatser, and another officer assaulted Paul Armes on April 30, 2002 (count 4); that Marlowe and others assaulted Sergio Martinez on October 6, 2001 (count 5); that Marlowe and Conatser assaulted Kenneth McIntyre in July 2001 (count 6); that Marlowe, Hale, Ferrell, and Locke assaulted Dartanian McGee on July 20, 2002 (count 7); and that Marlowe and Ferrell assaulted Larry Clark on September 10, 2002 (count 8). Conatser was acquitted of counts 4 and 6. The jury found Marlowe guilty of counts 4 through 7, but acquitted him on count 8.¹

The district court sentenced Conatser to a term of 70 months' imprisonment for the conspiracy conviction. Marlowe was sentenced to life imprisonment on count 3 for the denial of medical care that resulted in Kuntz's death, to run concurrently with the ten-year sentences imposed on each of counts 2, 4, 5, 6, and 7. Conatser and Marlowe appealed.

B. Facts

There was considerable evidence that a group of second-shift officers, led by Marlowe, would strike and kick inmates who were loud, obnoxious, or uncooperative and would conceal their unjustified use of force through the denial of medical care and the falsification of incident reports. Marlowe, a young sergeant, was the supervisor of the second shift, from 4:00 p.m. to midnight, during the relevant period. The jail, constructed to house 106 inmates, was chronically overcrowded. For example, on the day that Kuntz was beaten, there were 190 inmates in the jail. The second shift was usually staffed by four to seven corrections officers, none of whom were higher-ranking officers. As the investigation progressed, a number of second-shift officers admitted their own part in these assaults and that they accompanied Marlowe during assaults or stood outside a cell while Marlowe or others committed assaults.

Marlowe led by example and set the tone for other officers. Christopher Finley testified that Marlowe told him that "second shift was a different kind of shift"; that "no reports were done"; and that there was "no talking to higher up individuals unless everything went through him." Travis Bradley testified that on his first night working the second shift, Marlowe beat a "mouthy" drunk and then told Bradley "welcome" to second shift. Bradley also explained how Marlowe would get an uncooperative inmate "gassed up" and ready to fight by making smart remarks, belittling him, or cussing at him.

Marlowe had a penchant for striking inmates hard enough to render them unconscious, and he and other officers kept an oral tally of those assaults that was referred to as the "knock-out list." That "list" ultimately had as many as 21 people on it. In fact, Gary Hale testified that Marlowe instructed him to land his blows in the temple area because it was a "knock-out point." Marlowe and other officers would discuss, recount, and reenact these assaults when they were together. They would not do so, however, if any of the few officers who were not part of the "inner circle" were around. Without recounting all of the details or touching on all of the assaults or acts alleged as overt acts and substantive civil rights violations, we briefly discuss four specific incidents that reflect the nature of the conduct involved and are pertinent to the issues raised on appeal.

1. McIntyre

In the summer of 2001, Kenneth McIntyre was in the booking area using the telephone when he became agitated. He spit at one officer, William Westmoreland, but hit Marlowe instead. Marlowe, Conatser, and another officer named John McKinney immediately removed McIntyre to a holding cell. Westmoreland followed them and observed several officers striking McIntyre in the body. Westmoreland then joined in the assault by hitting McIntyre in the head. Although McIntyre's face was swollen and cut, no incident report was written. Conatser was acquitted of the charge associated with this assault; but Marlowe was convicted.

2. Martinez

Arrested for drunk driving in October 2001, Sergio Martinez was "mouthy" but not physically aggressive or threatening. When Martinez refused to answer questions during booking, Marlowe yelled at him and called him a "sawed-off little bastard." Martinez reciprocated with statements about 9-11, including that he was glad it happened and that he wished he had been one of the pilots so they could have killed more Americans. During the process, Martinez kicked off his boots and one of them hit Conatser. At some point during booking, Marlowe got out a pair of black gloves. Westmoreland took this as a signal that Martinez "was probably going to get beat." Marlowe and Westmoreland escorted Martinez to a detox cell, and Conatser followed but did not go in. While Conatser testified that he returned to the booking area, Westmoreland said Conatser was still outside the cell when they came out

Once inside the cell, Marlowe punched Martinez in the jaw with his left hand so hard that it rendered Martinez unconscious for five to seven seconds. They...