U.S. v. Perez

• Decision Date: 03 August 2009
• Docket Number: Docket No. 08-4905-cr.,Docket No. 08-4924-cr.,Docket No. 08-4131-cr.
• Citation: 575 F.3d 164
• Parties: UNITED STATES of America, Appellee, v. Angel PEREZ, Glen Cummings, and Elizabeth Torres, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

575 F.3d 164

UNITED STATES of America, Appellee, v. Angel PEREZ, Glen Cummings, and Elizabeth Torres, Defendants-Appellants.

Docket No. 08-4131-cr (CON).

Docket No. 08-4905-cr (CON).

Docket No. 08-4924-cr (CON).

United States Court of Appeals, Second Circuit.

Heard: April 27, 2009.

Decided: August 3, 2009.

Edward S. Zas, Federal Defenders of New York, Inc., Appeals Bureau, New York, N.Y., for Defendant-Appellant Perez.

Joseph J. Ferrante, Hauppauge, N.Y., for Defendant-Appellant Cummings.

Allan Laurence Brenner, Long Beach, N.Y., for Defendant-Appellant Torres.

Sarah Coyne, Asst. U.S. Atty., Brooklyn, N.Y. (Benton J. Campbell, U.S. Atty., David C. James, Robert M. Radick, Justin D. Lerer, Asst. U.S. Attys., Brooklyn, N.Y., on the brief), for Appellee.

Before: NEWMAN, POOLER, and PARKER, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

This appeal from criminal convictions of three federal corrections officers primarily concerns interpretation of the phrase "official proceeding" as used in 18 U.S.C. § 1512 punishing obstruction of justice. The principal issue is whether the procedures employed by the Federal Bureau of Prisons ("BOP") to investigate incidents involving use of force by BOP staff upon prisoners and to determine adherence to BOP policy constitute an "official proceeding" within the meaning of section 1512. This issue arises on an appeal by Angel Perez, Glen Cummings, and Elizabeth Torres from the August 20, 2008, and October 6, 2008, judgments of the United States District Court for the Eastern District of New York (Carol B. Amon, District Judge), convicting them, after a jury trial, of various offenses including obstruction of justice in violation of 18 U.S.C. § 1512.¹ The Defendants challenge the sufficiency of the evidence to support the "official proceeding" element of subsection 1512(c)(2). We conclude that the procedures of the BOP qualify as an "official proceeding" for purposes of section 1512 and that the evidence of these procedures was sufficient, and we therefore affirm.

Background

The three Defendants are all former corrections officers at the Metropolitan Detention Center ("MDC") in Brooklyn, New York. They were convicted on charges relating to their roles in the April 11, 2006, assault on MDC inmate Kenneth Howard and the cover-up of that beating.

The jury was entitled to find the following facts. On April 11, 2006, Perez, Torres, and Cummings, along with other officers, responded to a body alarm activated by a corrections officer who was injured in an altercation with inmate Howard. The responding officers put Howard in handcuffs and transported him from his unit to the MDC's Special Housing Unit ("SHU"). As Howard was being escorted into the elevator, Corrections Officer Jamie Toro tripped him and threw him face down to the floor of the elevator. While Howard was down, Cummings stomped on his back, shoulders, and neck, while Perez and Torres watched. Then Torres intervened, pushed Cummings off of Howard, and told everyone to move away from the elevator. After order was eventually restored, Howard, who suffered several lacerations and bruises, was transported to the SHU.

The BOP conducts an investigation after every use of force by a staff member on an inmate at the MDC. See U.S. Dep't of Justice, Federal Bureau of Prisons, "Program Statement," No. P5566.06 "Use of Force and Application of Restraints" (Nov. 30, 2005) ("BOP Use of Force Program Statement"). The investigation starts with the preparation of a "Use of Force Report." Id. ¶ 14(a). At the MDC, this report is usually prepared by an MDC lieutenant and compiled with the relevant portion of the lieutenant's log, a "use of force memorandum" written by each corrections officer involved in the incident, and background information on the inmate. Once the paperwork is completed, the Use of Force Report and other materials are forwarded to an After-Action Review Committee, composed of the Warden, the Associate Warden (responsible for correctional services), the Health Services Administrator, and a captain. See id. ¶ 15. The After-Action Review Committee is required to "determine if policy was adhered [to]" and complete an "After-Action Report" indicating its "findings," see id., and "decide if the matter requires further investigation," see id. ¶ 15(c). The Warden may refer the matter for further investigation to the Department of Justice's Office of Inspector General ("DOJ/OIG"), the BOP's Office of Internal Affairs, or the Federal Bureau of Investigation. See id.

The jury was entitled to find that Perez and Cummings gave false accounts of the incident in their use of force memoranda, and that Torres did so in her use of force memorandum as well as the Use of Force Report. Specifically, these Defendants falsely stated that Howard had become combative outside the elevator and "was placed on the ground" by the officers. After videotape of the incident was recovered, the matter was referred to the DOJ/ OIG for investigation. That investigation, in turn, ripened into this criminal proceeding.

Cummings, Torres, and Perez were convicted on a count charging that they "did knowingly, intentionally and corruptly obstruct, influence and impede, and attempt to obstruct, influence and impede, an official proceeding, to wit: a BOP investigation into the use of force against John Doe at the MDC on April 11, 2006," in violation of 18 U.S.C. § 1512(c)(2). Cummings was also convicted on a count charging him with depriving another of civil rights in violation of 18 U.S.C. § 241, but does not challenge this conviction on appeal.

The sentences include prison terms of 36 months for Cummings, 15 months for Torres, and 9 months for Perez, plus three years of supervised release for all three Defendants.

Discussion

I. Scope and Standards of Review

Sufficiency of evidence. The Government contends that the Defendants' challenge to the sufficiency of the evidence is not available for review because it should be viewed as a claim alleging a defect in the indictment under Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure, which is waived if not asserted in a motion to dismiss the indictment before trial. According to the Government, "[t]he crux of [the Defendants'] argument is that the conduct alleged in Count Three was improperly charged as the obstruction of an `official proceeding' under § 1512 and should instead have been charged as the obstruction of an `investigation' under § 1519."

The Defendants, however, had no basis to challenge the sufficiency of the indictment before trial because it met the basic pleading requirements and was valid on its face. The defect of which the Defendants complain is the sufficiency of the Government's proof of the elements of the offense it chose to charge in the indictment. As we have stated, "Unless the government has made what can fairly be described as a full proffer of the evidence it intends to present at trial ... the sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment." United States v. Alfonso, 143 F.3d 772, 776-77 (2d Cir.1998).

The Government also argues that because the outcome of this appeal hinges in part on a question of law concerning the meaning of the statutory term "official proceeding," the appeal does not really concern the sufficiency of the evidence. But as Perez correctly responds, "A challenge to the sufficiency of the evidence always requires a court to compare the Government's proof against the statutory elements, properly understood." It is not unusual for a court to review sufficiency challenges that turn on the meaning of a statutory term. See, e.g., Cuellar v. United States, ___ U.S. ___, 128 S.Ct. 1994, 2002-03, 170 L.Ed.2d 942 (2008) (concluding that evidence that petitioner concealed money during transportation was insufficient to sustain his conviction under the federal money laundering statute, because the language of the statute cannot be satisfied by "merely hiding funds"); Bailey v. United States, 516 U.S. 137, 142-43, 150-51, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (holding that the evidence was insufficient to support the defendant's convictions for using a firearm in violation of 18 U.S.C. § 924(c)(1) only because the word "use," properly construed, did not embrace mere possession of a firearm, but rather required "active employment" of a weapon).

As to the standard of review, the Government argues that even if the Court chooses to review the Defendants' sufficiency challenge, the claim is subject only to plain error, rather than de novo, review because it was not properly preserved in the District Court. However, since we conclude below that the sufficiency challenge is without merit even under de novo review, we need not resolve the dispute as to the applicable standard of review.

Jury charge. The parties agree that we should review the claimed error in the jury charge under plain error review because none of the Defendants preserved the error below.

II. Sufficiency of Evidence as to "Official Proceeding"

The Defendants' sufficiency challenge turns on the meaning of the phrase "official proceeding" in section 1512(c). This provision, which was enacted as part of the Sarbanes-Oxley Act of 2002, Pub.L. No. 107-204, § 1102, 116 Stat. 745, 807 (2002), provides:

(c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 1512(c) (2006).

Congress defined the term "official proceeding" for the purposes of sections 1512 (and 1513) as follows:

(1) the term "official proceeding" means—

(A) a proceeding before a judge or court of the United States,...