U.S.A v. 09-5094)

• Decision Date: 24 August 2010
• Docket Number: No. 08-6504,08-6506,09-5094.,09-5095,08-6504
• Citation: 617 F.3d 873
• Parties: UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant (09-5094/5095),v.Wesley LANHAM (08-6504; 09-5094); Shawn Freeman (08-6506; 09-5095), Defendants-Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

617 F.3d 873

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant (09-5094/5095),v.Wesley LANHAM (08-6504; 09-5094); Shawn Freeman (08-6506; 09-5095), Defendants-Appellants/Cross-Appellees.

Nos. 08-6504, 09-5095, 08-6506, 09-5094.

United States Court of Appeals Sixth Circuit.

Argued: March 5, 2010.

Decided and Filed: Aug. 24, 2010.

Rehearing and Rehearing En Banc Denied: Sept. 29, 2010.

Rehearing and Rehearing En Banc Denied Dec. 17, 2010.

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ARGUED: Martin S. Pinales, Strauss & Troy, Cincinnati, Ohio, Randy J. Blankenship, Blankenship Massey & Steelman, PLLC, Erlanger, Kentucky, for Appellants. Conor B. Dugan, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Martin S. Pinales, Candace C. Crouse, Strauss & Troy, Cincinnati, Ohio, Randy J. Blankenship, C. Ed Massey, Blankenship Massey & Steelman, PLLC, Erlanger, Kentucky, for Appellants. Conor B. Dugan, Mark L. Gross, United States Department of Justice, Washington, D.C., for Appellee.

Before KEITH, BOGGS, and GRIFFIN, Circuit Judges.

OPINION

DAMON J. KEITH, Circuit Judge.

Defendants Wesley Lanham (“Lanham”) and Shawn Freeman (“Freeman”) were convicted of violating an inmate's civil rights in violation of 18 U.S.C. §§ 241 and 242, and making a false entry in violation of 18 U.S.C. § 1519. Defendants were prison jailers when prison inmate, J.S., was raped in jail. Defendants and their supervisor, Shawn Sydnor (“Sydnor”), decided to “scare” J.S. after he was arrested for committing a traffic violation, by placing him in a general population jail cell. Defendants now appeal their convictions and sentences, arguing that there was insufficient evidence to support their convictions, and Freeman claims that he was entitled to a downward sentencing departure. The government appeals the district court's application of the 2006 Sentencing Guidelines to Defendants' sentences and refusal to apply a sentencing enhancement to Lanham. For the reasons discussed herein, we AFFIRM.

I. BACKGROUND

On February 14, 2003, Defendants Lanham and Freeman were working as corrections officers at the Grant County, Kentucky, Detention Center. Sergeant Shawn Sydnor and deputy jailers Jack Powell (“Powell”), Mark Coleman, Wendy Guthrie (“Guthrie”), and Lula Garrison were also working the same shift, which began on February 13, 2003, at 11 p.m. and ended on February 14, 2003, at 7 a.m. Lanham and Freeman were assigned to the Class D section of the Detention Center, and Sydnor was the supervisor that evening. That evening, J.S. was arrested for a traffic violation and brought to the Detention Center by Sheriff's Deputy Scott Allen. J.S. had been speeding and was arrested for eluding police. Deputy Allen told Sergeant Sydnor that J.S. had almost hit an off-duty police officer, who was Sydnor's friend.

J.S. was eighteen years old, six feet tall, and weighed around 125 pounds. He had blond highlights in his hair, wore a bright shirt, and had heart shapes on his undershorts. Sydnor described J.S. as a “[s]cared little kid” who was “[s]issy looking.” (R. 91, Tr. at 51.) When J.S. arrived, Sydnor called Guthrie, Lanham, and Freeman to come to the booking room to look at J.S.'s hair. During booking, Sydnor, Lanham, and Freeman teased and laughed at J.S. The officers told J.S. that he looked “like a girl” and a “sissy,” and they made fun of his highlighted hair and undershorts. (R. 91, Tr. at 54.) Sydnor told J.S. that he was “cute” and testified that he heard someone tell J.S. that he would make a “good girlfriend for the inmates.” ( Id. at 55.) J.S. began shaking and crying. Powell testified that he asked J.S. “what he was thinking, wearing silk heart shaped boxers in jail on Valentine's Day.” (R. 86, Tr. at 118.) Powell noted that “[i]t wasn't very smart because of the sexual content that could be brought because of it.” ( Id.) J.S. was booked at 1:05 a.m.

Sydnor told Lanham and Freeman that J.S. “needed to be scared.” ( Id.) Sydnor asked them to find J.S. a general population cell. Lanham stated that he “knew a guy down in 26 Hall” in Cell 101, Bobby Wright. (R. 91, Tr. at 57-58.) The inmates housed in 26 Hallway included those convicted of misdemeanors and felonies, and 26 Hallway was known as the “hallway from hell.” ( Id. at 59, 64.) Detention Center Nurse Sandy Cook (“Nurse Cook”) described the inmates there as “almost ... animalistic,” noting that “there was so much testosterone ... it was just a horrible place.” (R. 93, Tr. at 29.) Sydnor testified that he was aware of instances of inmates expressing concern about sexual assault; that sexually predatory behavior occurred in the prison; and that 26 Hallway had more incidents of sexually predatory conduct than other areas of the jail. Jailer Guthrie testified that the Detention Center staff were aware of 26 Hallway's violent reputation.

Cell 101, which is located in 26 Hallway, housed felony-convicted prisoners, and there were between twelve and fourteen inmates in the cell that evening. Among the prisoners was Victor Zipp, who was known as an intimidating leader in the cell. Zipp was often naked, and guards frequently had to tell him to put on clothes. Lanham and Freeman had both worked in 26 Hallway prior to February 13, 2003. Earlier that evening, Freeman had assisted in the removal of an inmate from Cell 102 in 26 Hallway whom inmates had beaten up. Bobby Wright testified that the inmates in 26 Hallway were “pretty rowdy” and “were looking for anything to go down again.” (R. 86, Tr. at 72.)

After Lanham volunteered that he knew an inmate in Cell 101, he and Freeman left booking and proceeded to 26 Hallway. After they left, Wendy Guthrie told Sydnor, “please don't put [J.S.] down there, somebody is going to beat him up.” (R. 92, Tr. at 132-33.) Sydnor told her that it was none of her business and that he wore the sergeant's stripes. Lanham and Freeman proceeded to Cell 101. Inmate Wright went to speak to Lanham and Freeman, and there were other inmates around the door as well. Lanham and Freeman were both standing outside the door while they spoke to Wright. Lanham and Freeman told Wright they were going to bring J.S. down to Cell 101, and Lanham told Wright they wanted him to “f-ck with” J.S. Freeman shook his head up and down as Lanham spoke. The other inmates standing close to the door reacted with celebration. Neither Lanham nor Freeman told the inmates to avoid hurting J.S. Wright testified that the inmates began behaving in ways that he had never seen before immediately after the guards told the inmates to “f-ck with” J.S.

Lanham and Freeman returned to the booking area, and Lanham told Sydnor that he had spoken to Wright and that everything had been “taken care of.” (R. 91, Tr. at 62.) Sydnor and Powell then escorted J.S. to Cell 101 in 26 Hallway. J.S. was crying. Sydnor testified that the inmates were “hollering” and being “rowdy and noisy.” (R. 92, Tr. at 5.) J.S. overheard an inmate call out, “Oh, it's Valentine's Day, bring him here. He'd make a good girlfriend.” (R. 86, Tr. at 37.) Powell heard an inmate describe J.S. as “pretty” and “cute.” ( Id. at 121.) Because of the sexual comments, Powell was concerned that this area was not safe for J.S. At least three or four inmates waited at the door when J.S. arrived and as he entered the cell. Some said things like, “He's so pretty, bring him in here. We've got a nice spot for him.” ( Id. at 38.) J.S. said he heard one of the guards say, “Here you go boys. I got some fresh meat for you.” ( Id. at 38-39.) A guard pushed J.S. into the cell and closed the door.

An inmate then grabbed J.S. around the arm and led him over to a bed. Inmates played with his hair, saying, “Oh it's so pretty. I love blond highlights. You look just like a girl.” ( Id. at 39.) Soon after, several inmates picked him up, started taking off his clothes, and slapped him with their prison flip-flops. J.S. called out for help numerous times, but no one responded. The inmates then dropped J.S. on his back and took him into the cell's shower area. The inmates pushed him against the shower wall and turned on the hot water; an inmate started beating his head against the wall. J.S. felt a strong pain in his buttocks and believed he was being anally raped. Eventually, J.S. got out of the shower and tried to run towards the door, but he fell on the floor. Zipp came out of the shower area naked. Some inmates picked J.S. up and started pressing his buttocks against the cell's window. Zipp told J.S. he had two choices: “Either get f-cked in the ass or suck my dick.” ( Id. at 44.) J.S. told him that he did not want to do either and said no several times. An inmate came up behind J.S., punched him in the head, and forced him to open his mouth. Zipp grabbed J.S. by the hair and forced his penis into J.S.'s mouth. J.S. bit down as hard as he could, and Zipp withdrew. An inmate hit him in the head again. After that, J.S. was left alone.

The guards left J.S. in Cell 101 all night and never checked on him. Later that morning, J.S. was brought to pretrial services. J.S. saw the Detention Center's nurse, Nurse Cook, who testified that J.S. told her that “he had been traumatized and he been raped and he had been abused all night long.” (R. 93, Tr. at 32.) Around 10:00 a.m., J.S. learned that he would be released from the jail, and his father picked him up. As they left, J.S. told his father that the jailers had placed him in a cell with other inmates, and that the inmates had raped him. A day or two later, J.S.'s father brought him to St. Luke's Hospital where he was treated for abrasions inside his mouth, bruising on his left buttocks, and an abrasion on his left lower chin and lower left leg.

Subsequent to February 14, 2003, Lanham admitted that he spoke to Bobby Wright that night. Lanham admitted that the officers intended to scare J.S. and that they spoke to Wright about this. He admitted ...