U.S. v. Vaden, 89-6227

• Decision Date: 11 September 1990
• Docket Number: No. 89-6227,89-6227
• Citation: 912 F.2d 780
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Troy W. VADEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 780

912 F.2d 780

UNITED STATES of America, Plaintiff-Appellee, v. Troy W. VADEN, Defendant-Appellant.

No. 89-6227.

United States Court of Appeals Fifth Circuit.

Sept. 11, 1990.

William M. Jennings, Longview, Tex., for defendant-appellant.

Lisa J. Stark, Peter McCloskey, U.S. Dept. of Justice, Civil Rights Div., Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court For the Eastern District of Texas.

Before GEE, RUBIN and W. EUGENE DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

A jury convicted Troy Vaden, a guard in the Texas Department of Corrections (TDC), of conspiring to violate the rights of an inmate ¹ and of aiding and abetting assaults on that inmate and a fellow officer resulting in a deprivation of their rights. ² Vaden challenges the sufficiency of the evidence supporting his conviction. We find no error and affirm.

I.

Vaden worked in the protective custody unit of a Texas prison, which housed inmates whose lives had been threatened. In early 1985, the staff was not large enough to control the institution, and gangs flourished. The TDC was in the process of hiring and training staff members to gain more control over the facility. During this period, TDC policy required that two guards escort a protective custody inmate wherever he went because inmates in protective custody were a threat to one another.

Juan Rivera, John Murray, Michael Bender, Ishmael Olquin and Armando Rodriguez were all protective custody inmates in January 1985. During that month, Rivera penned a note to Murray stating that he was planning to make "a move" on fellow inmate Rodriguez when possible. Murray wanted to protect Rodriguez from Rivera so he devised a plan to kill Rivera. Murray altered Rivera's note to make it look as if Rivera planned to attack Olquin, not Rodriguez. Murray showed Rivera's note to Olquin and Bender and convinced the two that Rivera planned to kill them. Olquin and Bender agreed to participate in Murray's plan to stab Rivera.

Murray gave Bender a homemade knife and Olquin a hacksaw blade. Olquin used the blade to cut a bar in his cell the night before the attack which would allow him to leave his cell to stab the passing Rivera. The plan called for Bender to use the knife to distract the guard while Olquin stabbed Rivera.

On the day of the attack, Officers Slater and Vaden began escorting Rivera from the showers. Sometime before the escort reached Bender's and Olquin's cells, Vaden, without warning Slater, abandoned the escort. As Rivera and Slater approached Bender's cell, Bender thrust the knife at the advancing escort. While Officer Slater turned his attention to Bender, Olquin escaped from his cell and stabbed Rivera four times. Rivera ran down the row to get away. Olquin then turned and pointed the knife at Slater. Murray and Bender yelled to Olquin, "Don't stick the boss." Olquin surrendered the knife to Slater and returned to his cell.

The first jury that heard this case could not reach a verdict so the trial judge declared a mistrial. The second jury convicted Vaden on all three counts. The trial judge denied Vaden's motion for judgment of acquittal. On appeal, Vaden argues that the evidence is insufficient to establish that he knew of the conspiracy or voluntarily participated in it. He also contends that the evidence is insufficient to establish that he aided and abetted in the assaults of Rivera and Officer Slater.

II.

A.

Count One of the indictment charged that Vaden, while acting under the color of state law, conspired to violate the federal rights of inmate Juan Rivera. 18 U.S.C.A. Secs. 241, 242 (Supp.1990). To convict Vaden, the government had to prove that while acting under color of state law Vaden conspired with others to deprive Rivera of a right guaranteed him by the Constitution or law of the United States. The sufficiency of the government's evidence on the conspiracy element is the only challenge Vaden makes to his conviction on Count One. "To sustain a conspiracy conviction, the government must establish that a conspiracy existed, that the accused knew of the conspiracy, and that he knowingly and voluntarily joined it." United States v. Osgood, 794 F.2d 1087, 1094 (5th Cir.) cert. denied, 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986).

In making a sufficiency of the evidence inquiry, we must consider the evidence in a light most favorable to the verdict and determine whether a rational fact-finder could have found Vaden guilty beyond a reasonable doubt. United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). We draw all reasonable inferences favorable to the verdict, United States v. Briscoe, 742 F.2d 842, 845-46 (5th Cir.1984), and "accept all credibility choices that tend to support the jury's verdict." United States v. McKenzie, 768 F.2d 602, 605 (5th Cir.1985), cert. denied, 474 U.S. 1086, 106 S.Ct. 861, 88 L.Ed.2d 900 (1986). The evidence need not exclude every reasonable hypothesis of innocence to support a guilty verdict. United States v. Michelena-Orovio, 719 F.2d 738, 743-44 n. 4 (5th Cir.1983), cert. denied, 465 U.S. 1104, 104 S.Ct. 1605, 80 L.Ed.2d 135 (1984).

Applying this standard, Vaden argues that a jury could not find beyond a reasonable doubt that he was a knowing and voluntary participant in the conspiracy to harm Rivera. We disagree. The evidence discussed below provides ample support for the jury's conclusion that Vaden conspired with Murray and Olquin to attack Rivera.

Two guards and an inmate testified that they saw Vaden talking to Murray for as long as forty minutes on the morning of the attack. Vaden then went to Olquin's cell and talked with him briefly. Given the inadequate staffing in the protective custody unit, the jury could infer that Vaden's lengthy conversation was unusual. Shortly after Vaden finished talking with Murray and Olquin, Bender asked Murray how the attack could be successful if two guards escorted Rivera. Bender testified that Murray said to him, "[D]on't worry about it, it's taken care of.... [H]e's read the letter and knows what's happening...." Since Murray had just finished talking to Vaden and Vaden was standing nearby at the time, Bender assumed that Murray referred to Vaden.

The morning of the attack, Rivera handed Vaden a note in which Rivera explained that he was having trouble with Inmate Rodriguez. Vaden filed a report and turned the note over to his superiors. Vaden argues that someone involved in the conspiracy would not have given the note to his superiors. We conclude, however, that the jury could infer that the note put Vaden on notice that Rivera needed special attention, which makes Vaden's abandonment of the escort more inexplicable. The jury was also entitled to infer that the note facilitated the attack because it caused the guards to take Rivera the longer route, by the attackers cells, to avoid Rodriguez.

The testimony concerning Vaden's unexplained abandonment of the escort is the most important evidence supporting the verdict. Around noon, Vaden and Slater escorted Rivera to the shower on one-row. Officer Clark, who was responsible for watching the escort ascend the stairs, Officer Slater and Officer Rogers, and Inmate Rivera testified that Vaden and Slater were at the showers when Rivera finished. Although...