U.S. v. Guidry

• Citation: 456 F.3d 493
• Decision Date: 18 July 2006
• Docket Number: No. 05-50977.,05-50977.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dwaun Jabbar GUIDRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

456 F.3d 493

UNITED STATES of America, Plaintiff-Appellee, v. Dwaun Jabbar GUIDRY, Defendant-Appellant.

No. 05-50977.

United States Court of Appeals, Fifth Circuit.

July 18, 2006.

Rehearing Denied August 16, 2006.

Joseph H. Gay, Jr., Asst. U.S. Atty., San Antonio, TX, Ilana H. Eisenstein (argued),

U.S. Dept. of Justice, Office of Sol. Gen., Washington, DC, for U.S.

Henry Joseph Bemporad (argued), Lucien B. Campbell, Fed. Pub. Def., San Antonio, TX, for Guidry.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, CLEMENT and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Defendant Dwaun Guidry was charged with depriving Denise Limon of her civil rights by kidnapping (Count One) and with violating her constitutional right to bodily integrity by sexually assaulting her (Count Two), both in violation of 18 U.S.C. § 242; carrying a firearm "during and in relation to" the sexual assault of Limon, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Three); and conspiring to deprive five other women of their due process right to bodily integrity, in violation of 18 U.S.C. § 241 (Count Four). After trial, the jury found him guilty on all counts. On appeal, Guidry makes five arguments: (1) the district court improperly admitted the testimony of Julie Ristaino accusing Guidry of extrinsic sexual assault offenses of which he was not convicted; (2) the prosecutor made remarks in his closing argument amounting to reversible error; (3) the evidence was insufficient to prove that Guidry conspired to deprive the five victims of their Fourteenth Amendment rights; (4) the evidence was insufficient to prove that Guidry carried a firearm "during and in relation to" the rape of Denise Limon, because Guidry carried a gun in his gunbelt as a matter of course; and (5) the kidnapping enhancement in 18 U.S.C. § 242 cannot be applied to Guidry because he did not transport or attempt to transport Limon across state lines. For the forthcoming reasons, we AFFIRM.

I. FACTUAL SUMMARY

Guidry was a police officer in the small town of Balcones Heights, Texas and typically worked the night shift from 10:00 p.m. to 6:00 a.m., when often there were only two patrol officers on duty. The two incidents giving rise to the charges for which Guidry was convicted occurred while Guidry was on duty. First, he sexually assaulted five women at the Balcones Heights Police Station; and, second, he raped Denise Limon after a routine traffic stop.

A. Sexual Assault at the Balcones Heights Police Station

The sexual assault at the Balcones Police Station gave rise to Count Four, which alleged that Guidry conspired to deprive five women of their due process right to bodily integrity. Guidry and his partner Rolando Trevino arrested Denise Almodovar, Sarah Adams, Candace Ramirez, Becki Taylor, and Lindsey Valsamaki at 1:00 a.m. on November 24, 2002, when a local gas station attendant reported that the women were visibly intoxicated when they arrived in separate cars at the station. The women had each consumed over 11 alcoholic drinks that night and acknowledged they were drunk. Guidry and Trevino handcuffed the five women, placed them in their patrol car, and drove them to the Balcones Heights police station. The only other person at the police station, besides the two officers and the five women, was the dispatcher, who sat in a secure booth in a separate part of the police station. The officers followed normal booking procedure by taking the women's personal belongings, fingerprinting and photographing them, and placing them in holding cells. When the officers were photographing the women, they allowed the women to take "stupid mug shots." They also allowed the women to be in one cell together.

After a while, Guidry and Trevino led the five women out of their cell and into the patrol workroom, which is one of few rooms without video surveillance. Generally, adult arrestees are not permitted in the patrol workroom. The officers informed the women that they were not going to charge them and were going to "pretend like it never happened." Guidry ripped up the arrest papers. Guidry said, "[Y]ou are all going to be free to go, but it will take a while," and asked what the women were "going to do for" him and Trevino in return for letting them go without filing criminal charges.

Guidry pulled Becki Taylor to him and kissed her on the mouth. At trial, Taylor testified that this advance was unwanted. The officers told the women to dance for them and turned on the workroom radio. The women danced. Taylor and Adams called their friend Will Thompson, who had also been drinking with them, to pick the women up at the police station. The officers then made sexual advances on the five women. Trevino moved behind Candace Ramirez and reached his hand down her jeans and underwear. Ramirez turned around to find that Trevino had unzipped his pants. Trevino forced Ramirez's hand to touch his exposed penis. When she resisted, he forced her head towards his penis. Ramirez resisted and extricated herself. She moved closer to her friend Valmasaki, who was talking to Guidry. Guidry turned to Ramirez and forced her to kiss him. Meanwhile, Trevino moved on to Almodovar and Adams. Almodovar testified that Trevino shocked her by putting his hands down her pants and touching her genital area. Adams stated that Trevino reached around from behind her and put his hand down her pants while he tried to pull his penis out of his pants.

At some point, Guidry told Valsamaki to go with him to retrieve the women's personal belongings. Instead, Guidry led her to a bathroom, where he opened the door, unzipped his pants, pulled out his penis, and attempted to force her to grab it. She resisted, and Guidry masturbated in front of her. Valsamaki testified that she did not feel she could run away because "[h]e had his gun and I was singled out. I was by myself. I didn't know what door led out. I couldn't go anywhere."

Thompson arrived to pick the women up, and the officers returned their personal belongings. Three of the women walked out of the building. Thompson later testified that the women "were pretty shocked" and that "they had tears in their eyes and they were running down their face." Taylor and Adams, meanwhile, did not want the officers to retain the photographs they took of the women and asked the officers to give them the pictures. The officers told them to "come back in here." The two returned to the patrol workroom. Guidry put Adams in a chair, undid her pants, and put his tongue on her vagina. Trevino took a picture of the event with a Polaroid camera. Trevino then did the same thing to Taylor while Guidry took a photograph. Taylor testified, "I didn't want to be in there all .... I just wanted to leave." The women expressed their desire to leave, and the officers led them out of the station saying, "Nobody is going to know about this." Taylor took the picture of Guidry and Adams. Taylor gave Trevino her telephone number, and testified that she was afraid if she refused the officers would take them back into the patrol room.

Afterward, Guidry wrote up an incident report, noting the women's detention. No criminal charges were filed against the five women. Guidry then went to see the police dispatcher, Lee Faz, to ask him what he had seen on the video surveillance that night. Faz said he did not see anything, and Guidry asked to borrow the surveillance tape. This is a departure from normal procedure, which requires that the surveillance tapes be stored in the dispatch area.

The five women filed a civil lawsuit, which they settled. Upon learning of the lawsuit, the City of Balcones Heights asked the Texas Rangers to investigate the assault. The surveillance tape, the fingerprint cards, and the mug shots were never found, except for the photo Taylor retrieved before leaving the police station, which depicted Guidry in police uniform with his head between Adams's legs. The Texas Rangers executed two federal search warrants to search for the missing evidence at Guidry's home. Guidry admitted he had destroyed the pictures (after first showing them to other officers), fingerprint cards, and arrest documentation. According to Texas Ranger Skylor Hearn, Guidry said, "Man, I don't keep trophies. When I knock someone down, I don't keep panties or pictures .... I am married. I don't need no pictures floating around." Although his incident report stated the women were "too intoxicated," and noted that they had "slurred" speech, he told Hearn that no charges were filed against the five women because they were "stone cold sober" when they arrived at the police station. Guidry did not deny engaging in sexual activity with the women and said it was consensual.

B. Sexual Assault of Denise Limon

The sexual assault of Denise Limon gave rise to Count One, depriving Limon of her civil rights by kidnapping; Count Two, violating her constitutional right to bodily integrity; and Count Three, carrying a firearm "during and in relation to" the sexual assault of Limon.

Approximately one month after the sexual assault at the Balcones Heights police station, Guidry raped Denise Limon. On December 19, 2002, between 1:00 a.m. and 3:00 a.m., Denise Limon and her fiancé Ricardo Alvarez were arguing while driving home from a friend's party. Alvarez pulled the car over, and the two got out of the car and continued arguing. They got back in the car to continue their drive home and noticed a police vehicle was following them. Alvarez was nervous because he had outstanding traffic warrants, did not have his driver's license, and had been drinking. The officer signaled for Alvarez to pull over, and Alvarez complied. When the officer approached the car, Alvarez gave him a copy of his license. The officer looked at it and gave it back to him without further investigation. The officer told Alvarez that he received a report of a domestic dispute and that Limon could not remain...