U.S. v. Lavallee

Citation439 F.3d 670
Decision Date28 February 2006
Docket NumberNo. 03-1515.,No. 04-1540.,No. 03-1523.,No. 04-1000.,No. 03-1522.,No. 04-1538.,03-1515.,03-1522.,03-1523.,04-1000.,04-1538.,04-1540.
PartiesUNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Mike LaVALLEE, Rod Schultz, and Robert Verbickas, Defendants-Appellants/Cross-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Brian K. Holland, Holland & Pagliuca, P.C., Denver, CO, appearing for Appellant/Cross-Appellee Verbickas.

Richard A. Hostetler, Law Office of Richard A. Hostetler, Denver, CO, appearing for Appellant/Cross-Appellee LaVallee.

Neil McFarlane, Denver, CO, appearing for Appellant/Cross-Appellee Schultz.

Karl N. Gellert, Attorney (R. Alexander Acosta, Assistant Attorney General, Bradley J. Schlozman, Acting Assistant Attorney General, and Jessica Dunsay Silver, Attorney, with him on the briefs), United States Department of Justice, Washington, DC, appearing for Appellee/Cross-Appellant United States.

Before TACHA, Chief Circuit Judge, BRISCOE, and LUCERO, Circuit Judges.

TACHA, Chief Circuit Judge.

This appeal relates to a three-year investigation of inmate abuse at the United States Penitentiary in Florence, Colorado ("USP-Florence"), that resulted in charges against ten former correctional officers for conspiracy and deprivation of inmates' constitutional rights in violation of 18 U.S.C. §§ 241 and 242. Following a jury trial, two correctional officers, Michael LaVallee and Rod Schultz, were found guilty of both offenses, and Robert Verbickas was found guilty of the substantive deprivation charge. All three men (collectively, "Appellants") appeal both their convictions and sentences. The Government cross-appeals their sentences. Mr. Schultz also appeals the District Court's denial of a motion for a new trial based on newly discovered evidence and the Government's suppression of evidence in violation of Brady v. Maryland. We have consolidated all five cases for disposition on appeal. We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

Beginning in 1997, the Government began investigating allegations of the widespread abuse of prisoners and the falsification of records to cover up that abuse at USP-Florence. As a result of the investigation, eight Bureau of Prisons ("BOP") correctional officers were indicted and two were charged by information. Three officers — Dennis Britt, Charlotte Gutierrez, and Kenneth Mitchell — pleaded guilty and cooperated with the Government by providing testimony at trial.

The seven remaining defendants, including Appellants, were charged in a ten-count superceding indictment on February 6, 2001. All seven were named in Count I which alleged a vast conspiracy of abuse and cover-up, in violation of 18 U.S.C. § 241. The remaining nine counts charged certain defendants with excessive force against individually named inmates in violation of the inmates' Eighth Amendment right to be free from cruel and unusual punishment. See 18 U.S.C. § 242.

At trial, the Government sought to establish a vast conspiracy to abuse inmates. Throughout trial, the Government maintained a "green light" theory in which it alleged that Captain Terry Hines had given the defendants the "green light to take care of business" with certain inmates in the Special Housing Unit1 ("SHU") who were aggressive toward the prison staff. Several correctional officers testified that they understood this to mean that they were to abuse inmates to let them know that aggression against prison staff would not be tolerated. Although not all supervisors were tolerant of the wrongful conduct, some supervisors were.

Standard procedure at the SHU for any use of force required the officers to document the incident through memoranda. Additionally, any time there was a planned use of force, the incident was generally videotaped. The tapes were designed to ensure that the officers acted in accordance with the BOP's "Use of Force Policy."

Accordingly, in support of its conspiracy theory under 18 U.S.C. § 241, the Government presented a case at trial that detailed the officers' agreements to provide false reports and fabricate injuries to themselves when they violated the BOP's Use of Force Policy by beating inmates unjustifiably. They presented testimony that several officers created an atmosphere that not only tolerated abuse of inmates, but encouraged it. The Government maintained that, in addition to conspiring to do so, the officers in fact violated inmates' civil rights through beatings and assaults. The facts of the incidents giving rise to the Appellants' assault convictions under 18 U.S.C. § 242 are as follows.

A. The Howard Lane Assault

Testimony at trial demonstrated that Howard Lane, a USP-Florence prisoner, wrote several letters containing sexually explicit remarks to a female USP-Florence officer. After the discovery of the letters, Mr. Verbickas escorted Mr. Lane to Captain Hines's office, where the Captain told Mr. Verbickas and Mr. Britt to "take this piece of shit down to SHU and give him a treatment." Mr. Verbickas and Mr. Britt applied restraints to Mr. Lane's wrists and took him to the SHU. As he was led to the SHU, Mr. Lane threatened the officers and struggled against the restraints. When the trio arrived at the SHU, Ms. Gutierrez opened a cell door as the other officers escorted Mr. Lane inside. Mr. Britt returned to the officers' station.

Ms. Gutierrez testified that she saw Mr. Verbickas punch Mr. Lane while he was standing against the wall of the cell, his hands still restrained behind his back. She further stated that Mr. Verbickas then placed him on the floor and that she kicked him in the ribs so as to avoid leaving visible injuries and the concomitant need to file an incident report. Mr. Verbickas then grabbed Mr. Lane by his collar and the seat of his pants, lifted him waist high, and dropped him on his face. Blood oozed from Mr. Lane's lip. Finally, Mr. Verbickas threw Mr. Lane up against the wall, leaving a blood stain.

Because Mr. Lane suffered visible facial injuries as a result of the beating, the officers discussed how they would falsify their incident reports to avoid an investigation. The reports ultimately filed with USP-Florence stated that Mr. Lane kicked both Mr. Verbickas and Ms. Gutierrez, and Mr. Lane threw himself up against the wall. To support this version of events, Ms. Gutierrez testified that she inflicted an injury on herself.

B. The Pedro Castillo Assault

Pedro Castillo, another inmate in the SHU, was an orderly in that unit and responsible for cleaning as directed by the officers. During an argument with Ms. Gutierrez on the morning of April 5, 1996, Mr. Castillo threw a mop and bucket of water onto the floor. Because of this, Mr. Castillo lost his job as an orderly as well as the freedom associated with the job; he was forced to return to 23-hour lockdown.

The Government presented evidence at trial that later that day, several officers met to discuss how they would further punish Mr. Castillo for his behavior that morning. According to the Government, the officers resolved to concoct a story that Mr. Castillo was cutting himself — he was a known self-mutilator — which would require them to perform a forced-cell move. The officers assigned roles to each other in the ensuing assault. Because a video camera was perched outside Mr. Castillo's cell, Mr. Schultz's role in the assault was to knock the camera over so that it would not record the officers entering the cell. After doing so, several officers entered the cell, pulled Mr. Castillo off his top bunk, put him on the floor, and restrained him with handcuffs. Additional testimony demonstrated that the officers then took Mr. Castillo to a holding cell where Mr. Schultz and Mr. LaVallee each struck him two or three times in the back with their fists while Mr. Mitchell held Mr. Castillo against the wall. Mr. Mitchell then released Mr. Castillo and walked back to the officers' station approximately twenty feet away; he could hear the sound of the blows as the officers continued to beat Mr. Castillo. Ms. Gutierrez then entered the cell and Mr. LaVallee told her to kick Mr. Castillo, which she did. After the assault, Mr. LaVallee told Ms. Gutierrez that they had beaten Mr. Castillo on her behalf.

Following the incident, the officers again fabricated false reports to justify the forced-cell move. The officers reported that Mr. Castillo had been cutting himself and that when the officers entered the cell to subdue him, Mr. Schultz slipped and knocked down the camera. The reports also stated that once the officers were inside the cell, Mr. Castillo punched one of them in the head. None of the reports mentioned that Mr. Castillo was beaten.

Mr. Verbickas was charged with one count of conspiracy to violate inmates' civil rights and three substantive assault counts regarding individual inmates. Mr. Schultz and Mr. LaVallee were also charged with conspiracy. Additionally, Mr. Schultz was charged with three substantive assault counts and Mr. LaVallee was charged with four. Following approximately eight weeks of testimony and two weeks of jury deliberations, Mr. Verbickas was convicted on one count of using excessive force against Mr. Lane and was sentenced to 30 months' imprisonment. Both Mr. Schultz and Mr. LaVallee were convicted on the conspiracy charge and the substantive assault charge involving Mr. Castillo. The District Court sentenced them to 41 months' imprisonment. This appeal followed.2

In Mr. Verbickas's opening brief, he raises four issues that he claims warrant reversal of his conviction. Mr. LaVallee and Mr. Schultz incorporated these claims by reference into their briefs on appeal. We will therefore address these issues first, as they apply to all the Appellants. We will then address Mr. LaVallee's and Mr. Schultz's...

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