U.S. v. Simmons
| Decision Date | 21 November 2006 |
| Docket Number | No. 05-60419.,05-60419. |
| Citation | 470 F.3d 1115 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Maceo SIMMONS, Defendant-Appellant, Cross-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Gregory Bryan Friel (argued), Jessica Dunsay Silver, U.S. Dept. of Justice, Civ. Rights Div—App. Section, Washington, DC, Richard Terrell Starrett, Asst. U.S. Atty., Jackson, MS, for U.S.
Samuel Dennis Joiner, Fed. Pub. Def., Kathryn Neal Nester (argued), Jackson, MS, for Simmons.
Appeals from the United States District Court for the Southern District of Mississippi.
Before BARKSDALE, BENAVIDES and OWEN, Circuit Judges.
Convicted of sexual assault under color of law, involving aggravated sexual abuse, in violation of 18 U.S.C. § 242, Maceo Simmons contests primarily the admission both of Government expert-witness testimony concerning sexual-assault victims and of Simmons' prior state-trial testimony; and the sufficiency of the evidence for his conviction. The Government challenges: the district court's refusal to impose a two-level enhancement under Guidelines § 2A3.1(b)(3)(A), applicable if the victim was "in the custody, care, or supervisory control of the defendant"; and the reasonableness of Simmons' sentence, pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (). CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.
In September 1999, Simmons and Thomas Catchings, both Jackson Police Department (JPD) officers, assisted another officer during the stop of an automobile containing 19-year-old passenger Syreeta Robinson and her boyfriend, Towaski Bell. After discovering marijuana in Robinson's possession, Simmons confiscated it, arrested and handcuffed her, and placed her in the back of his police vehicle. Bell, who was arrested for possessing marijuana and making false statements to a police officer, was placed in the back of Catchings' police vehicle. Before leaving the scene, Simmons told Catchings that Robinson "wanted to have sex" with Simmons.
Simmons and Catchings proceeded in their police vehicles to the police station, where Simmons waited in his vehicle with Robinson while Catchings took Bell inside for booking. After Catchings emerged from the police station, Simmons radioed him and asked him to follow Simmons' police vehicle. After departing from the police station, Simmons stopped his vehicle, removed Robinson's handcuffs, and moved her to the front seat of his police vehicle.
Next, he drove to an unlit, isolated area. Catchings followed and, according to his testimony, parked his police vehicle in order to act as a lookout while Simmons had sex with Robinson. Simmons forced Robinson to perform oral sex twice, and sexually assaulted her vaginally and anally. Robinson testified this activity was against her will.
Robinson, who was sobbing, was driven home by Catchings. He warned her not to tell anyone about the incident. Nevertheless, shortly after reaching home, Robinson told her boyfriend's mother and a friend about the night's events. Several days later, Robinson visited a rape-crisis center. But, fearing possible repercussions from the police, Robinson did not report the sexual assault until October 2000, approximately a year after the incident.
In November 2001, Simmons and Catchings were jointly tried in Mississippi state court for sexual battery and conspiracy to commit sexual battery. Simmons testified, denying having sex with Robinson. Although both men were acquitted, Simmons was terminated by the JPD in 2002 because of the incident with Robinson.
Simmons later became a police officer at Fort Hood, Texas. Two of his fellow officers there testified Simmons told them he had sex with a woman on, and in, his police vehicle while another officer was present, which resulted in Simmons' termination by the JPD.
In September 2004, a federal grand jury indicted Simmons on one count of sexual assault under color of law, in violation of 18 U.S.C. § 242, and one count of possession of a firearm while in furtherance thereof, in violation of 18 U.S.C. § 924(c)(1)(A)(i). In March 2005, Simmons was found guilty of the sexual-assault charge, the jury finding the offense involved aggravated sexual abuse resulting in bodily injury to the victim. He was acquitted on the firearm charge.
Simmons was sentenced, inter alia, to 240 months in prison. In imposing sentence, the district court sustained Simmons' objection to Guidelines § 2A3.1(b)(3)(A)'s two-level "custody" enhancement and, because of Simmons' age, imposed a sentence 84 months below the low end of the Guidelines sentencing range calculated by the district court.
Simmons' claims fail. The Government's challenge to the sentence succeeds for the denial of the "custody" enhancement. Accordingly, because we remand for resentencing, we do not decide the Government's claim that the imposed sentence was not reasonable.
Simmons presents the following contentions: (1) the evidence was insufficient for his conviction; (2) a Government expert witness should not have been permitted to testify about rape-victim conduct; (3) admitting excerpts of his state-trial testimony violated Federal Rule of Evidence 404(b) (), as well as the doctrine of collateral estoppel; (4) admitting evidence he violated police procedures by failing to log seized marijuana also violated Rule 404(b); (5) the Government's use of the word "kidnap" during closing argument denied him a fair trial; and (6) the court erred by refusing to instruct the jury on Simmons' state-court acquittal.
Simmons maintains the evidence was insufficient because the Government produced no physical or medical evidence due to the sexual assault's not being reported for more than a year after the incident; and Robinson's testimonial inconsistencies undermined her credibility. For these reasons, and because, according to Simmons, no evidence showed he used force or Robinson experienced pain, Simmons claims the evidence was insufficient to support his aggravated-sexual-abuse conviction. At the close of both the Government's case-in-chief and all the evidence, Simmons moved for judgment of acquittal on these grounds, pursuant to Federal Rule of Criminal Procedure 29(a).
The denial of such a motion is reviewed de novo. United States v. Myers, 104 F.3d 76, 78 (5th Cir.), cert. denied, 520 U.S. 1218, 117 S.Ct. 1709, 137 L.Ed.2d 834 (1997). Simmons' having timely moved for such judgment, the usual standard of review is employed: the verdict will be affirmed "if a reasonable trier of fact could conclude from the evidence that the elements of the offense were established beyond a reasonable doubt". United States v. Delgado, 256 F.3d 264, 273 (5th Cir.2001). As is more than well established for this review, we evaluate neither the weight of the evidence nor the credibility of the witnesses. Id. That is for the jury. E.g., United States v. Holmes, 406 F.3d 337, 351 (5th Cir.) () (internal quotations omitted), cert. denied, ___ U.S. ___, 126 S.Ct. 375, 163 L.Ed.2d 163 (2005). All the evidence and reasonable inferences are viewed in the light most favorable to the verdict. E.g., United States v. Carrillo-Morales, 27 F.3d 1054, 1064 (5th Cir.1994), cert. denied, 513 U.S. 1178, 115 S.Ct. 1163, 130 L.Ed.2d 1119 (1995); United States v. Marshall, 762 F.2d 419, 423 (5th Cir.1985) ().
Simmons' challenges to the lack of physical and medical evidence of the sexual assault and to Robinson's credibility are unavailing. Nothing in 18 U.S.C. § 242 or § 2241(a) requires such evidence. Conviction under § 242 is proper when, acting under color of law, a person willfully deprives another of a federal right. A § 242 offense involves "aggravated sexual abuse" when the offender "knowingly causes another person to engage in a sexual act" either by (1) "using force against that other person", or (2) "threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping". 18 U.S.C. § 2241(a). The evidence showing Simmons deprived Robinson of federal rights and caused her to engage in sexual acts through force consisted not merely of Robinson's testimony, but included Simmons' statements and the testimony of numerous other witnesses, including Catchings. Simmons' challenges to Robinson's credibility, and to the sufficiency of the evidence in general, overlook this abundant corroborating evidence.
Catchings testified: then a JPD officer, he acted as a "lookout" while Simmons had sex with Robinson, and Simmons invited him to have sex with her. Robinson's boyfriend's mother and Robinson's friend testified Robinson telephoned them in the early morning hours following the sexual assault, distraught over the incident. Two others confirmed Robinson visited a rape-crisis center a few days later. The center's director testified Robinson appeared "traumatized". Although Simmons did not testify, excerpts of his prior state-court trial testimony were admitted and shown to be false by JPD records. Finally, Simmons' state-court testimony denying having had sex with Robinson was contradicted by the two Fort Hood Police Officers' testimony that Simmons bragged about having had sex with a woman in, or on the back of, his police vehicle, and about having been terminated by the JPD as a result.
"[A] defendant's exculpatory statements which are shown by other...
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