U.S. v. Holly
| Decision Date | 12 June 2007 |
| Docket Number | No. 05-7130.,05-7130. |
| Citation | 488 F.3d 1298 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Melvin Ellis HOLLY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Warren Gotcher, Gotcher and Belote, McAlester, OK, for Appellant.
Robert G. Guthrie, Assistant United States Attorney (Sheldon J. Sperling, United States Attorney, with him on the brief), Muskogee, OK, for Appellee.
Before KELLY, MURPHY, and HOLMES, Circuit Judges.
Melvin Holly was convicted by a jury on fourteen criminal counts, including five counts of felony deprivation of rights under color of law involving aggravated sexual abuse. In the district court's instruction to the jury on the definition of aggravated sexual abuse, the court informed the jury it need not find actual violence and could infer the requisite degree of force from a disparity in size or coercive power. It further explained the jury could alternatively find the requisite fear element if there was a fear of some bodily harm, which could also be inferred from a disparity in size or power, or control over the victim's everyday life. On appeal, Holly argues the district court erroneously instructed the jury on the definition of aggravated sexual abuse. He therefore challenges his convictions on the five counts of felony deprivation of rights, all of which required a finding of aggravated sexual abuse. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court reverses and remands the case to the district court to vacate the convictions as to counts II, IV, VI, and VII. The conviction on Count V is affirmed upon harmless error review.
Holly, the sheriff of Latimer County, was indicted in a fifteen-count superseding indictment that charged eight counts of misdemeanor deprivation of rights under color of law in violation of 18 U.S.C. § 242; five counts of felony deprivation of rights under color of law involving aggravated sexual abuse in violation of 18 U.S.C. § 242; one count of making a false statement in violation of 18 U.S.C. § 1001; and one count of tampering with a witness in violation of 18 U.S.C. § 1512(a)(2)(C). The indictment arose out of a series of sexual assaults perpetrated by Holly against inmates and employees of the Latimer County Jail, as well as the daughter of an employee of the jail. Following a five-day jury trial, Holly was convicted on all counts except one count of misdemeanor deprivation of rights under color of law. Holly challenges his conviction only as to the five counts of felony deprivation of rights. On each of these five counts, the jury found the deprivation of rights involved aggravated sexual abuse.
With respect to the five counts at issue in this appeal, there was testimony presented at trial that Holly had nonconsensual sex with four inmates at the Latimer County Jail and attempted to have sex with another whose resistance ultimately deterred him. Each of the five victims testified at trial. Summer Hyslop testified that Holly took her from the jail to his farm where he parked the car, told her to get into the back seat, and then proceeded to rape her. She explained she did not run away because she was scared he would shoot her. In addition, Hyslop stated that on another occasion, Holly raped her on the floor of his office at the jail. Vicki Fowler testified that Holly forced her to have sex with him in his office after allowing her to make a personal phone call. Amber Helmert related a situation in which Holly attempted to have sex with her in his office after calling her to the office using the pretext of a family emergency. Helmert testified that she yelled and physically resisted him, ultimately causing him to stop the assault. Although her resistance prevented Holly from having sex with her, Helmert testified that he penetrated her vaginal area with his finger. Rebecca Foreman testified that Holly took her from the jail to a trailer in a nearby town where he made sexual advances and proceeded to have sex with her against her will. April Partain testified that Holly had sex with her in his office against her will and that she did not fight back because she was afraid of his reaction. Partain explained she had sex with Holly on multiple occasions.
While each of the victims testified she was scared at the time of the sexual assaults, only Helmert referenced any specific threat made by Holly during the sexual encounter. Each victim did, however, testify that Holly was wearing a gun just prior to the sexual assault and placed it within reach while the incidents occurred. Helmert further elaborated that Holly looked repeatedly at his gun just prior to the sexual assault and threatened to "get to" her family, including her nine-year-old sister, if she did not cooperate. Hyslop, Foreman, and Partain all admitted, either in their trial testimony or in a prior statement, that they had sex or flirted with Holly partially for the benefits and jail privileges they received as a result. Only Helmert testified she physically resisted Holly's advances.
In defense, Holly's primary theory was that the sexual acts in question did not occur and could not have occurred due to his failing health. His doctor testified that Holly had extreme bowel problems and impotence during the time periods in question and that these health problems would have made sexual intercourse impossible. Holly also testified on his own behalf, specifically denying the allegations of each government witness.
In formulating its jury instruction on aggravated sexual abuse, the district court rejected Holly's requested jury instruction that simply quoted the aggravated sexual abuse statutory language. It instead gave the following instruction:
The term "aggravated sexual abuse" means that a person was caused to engage in a sexual act by another's use of force against that person or by threatening or placing that person in fear that any person will be subjected to death, serious bodily injury, or kidnapping.
The term "sexual act" as referenced above means contact between the penis and the vulva or the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
You may find that the defendant's conduct involved aggravated sexual abuse if you find that he used force during the alleged sexual assault. To establish force, the government need not demonstrate that the defendant used actual violence. The requirement of force may be satisfied by a showing of restraint sufficient to prevent the victim from escaping the sexual conduct. Force may also be implied from a disparity in coercive power or in size between the defendant and the victim or from the disparity in coercive power, combined with physical restraint.
Alternatively, you may find the defendant's conduct involved aggravated sexual abuse if you find the defendant placed the victim in fear of death, serious bodily injury, or kidnapping. The requirement of fear may be satisfied when the defendant's actions implicitly place the victim in fear of some bodily harm. Like force, fear can be inferred from the circumstances, particularly a disparity in power between the defendant and the victim. Further, a defendant's control over a victim's everyday life can generate fear.
Holly did not object to the first two paragraphs of this instruction, but he argued the rest of the instruction was improper. The jury convicted Holly on all five counts involving aggravated sexual abuse: Count II involving Hyslop, Count IV involving Fowler, Count V involving Helmert, Count VI involving Foreman, and Count VII involving Partain.
Pursuant to 18 U.S.C. § 242, "[w]hoever, under color of any law . . . willfully subjects any person in any State . . . to the deprivation of any rights" violates federal law. The statute sets forth three separate categories of violations, each with a different maximum punishment. Holly was convicted under the third category, which states in relevant part that "if such acts include . . . aggravated sexual abuse, or an attempt to commit aggravated sexual abuse . . . [the defendant] shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death." 18 U.S.C. § 242. Because aggravated sexual abuse is not defined in § 242, the statute necessarily requires reference to 18 U.S.C. § 2241, the federal aggravated sexual abuse statute. Under § 2241(a), an individual commits aggravated sexual abuse if he "knowingly causes another person to engage in a sexual act—(1) by using force against that other person; or (2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping." Thus, although Holly's convictions on the challenged counts were pursuant to § 242, these convictions turn on whether his acts violated the substantive provisions of § 2241.
Holly argues the district court erroneously instructed the jury on the definition of aggravated sexual abuse. While he does not dispute the general definition of aggravated sexual abuse drawn directly from the statutory language of § 2241, he contends the district court erred in its subsequent explanation of the requisite elements of a violation. He argues the language of the jury instruction at issue eliminated the government's burden of proving the fear of serious bodily harm. Specifically, Holly challenges the district court's instructions as to the alternative elements of force and fear. This court "review[s] a district court's decision to give a particular jury instruction for an abuse of discretion and consider[s] the instructions as a whole de novo to determine whether they accurately informed the jury of the governing law." United States v. Gwathney, 465 F.3d 1133, 1142 (10th Cir.2006).
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