U.S. v. Walsh

• Court: U.S. District Court — Western District of New York
• Writing for the Court: Curtin
• Citation: U.S. v. Walsh, 27 F.Supp.2d 186 (W.D. N.Y. 1998)
• Decision Date: 14 July 1998
• Docket Number: No. 96-CR-1C(Sc).,96-CR-1C(Sc).
• Parties: UNITED STATES of America, v. John WALSH, Defendant.

27 F.Supp.2d 186

UNITED STATES of America, v. John WALSH, Defendant.

No. 96-CR-1C(Sc).

United States District Court, W.D. New York.

July 14, 1998.

COPYRIGHT MATERIAL OMITTED

Denise E. O'Donnell, United States Attorney (Paul J. Campana, Assistant United States Attorney, of counsel), Buffalo, NY, for U.S.

Connors & Vilardo (Terrence M. Connors, of counsel), Buffalo, NY, for Defendant.

CURTIN, District Judge.

Before the court is defendant John Walsh's motion for judgment of acquittal or, in the alternative, motion to dismiss the second superseding indictment, or motion to grant a new trial (Item 58). The government has responded (Item 61), and defendant has replied (Item 62). The parties appeared before the court for oral argument on December 4, 1997.

BACKGROUND

After a trial by jury, defendant John Walsh was convicted on all three counts of violating 18 U.S.C. § 242. Each count charged that defendant Walsh deprived inmate Norvin Fowlks of his constitutional rights by stepping on Fowlks' penis while Fowlks was in a cell at the Orleans County Jail.

Walsh was a Lieutenant at the jail and supervised the other Corrections Officers on his shift. Of particular note, he weighed almost 400 pounds. Fowlks was an inmate at the jail when the alleged incidents occurred. Although Fowlks is mentally ill and currently housed at a mental hospital, he was able to testify at the trial.

The trial took place from September 22, 1997, through September 30, 1997. The jury found Walsh guilty on all counts. The following is a recount of the evidence "read most favorably to the jury's verdict." United States v. Lanier, 520 U.S. 259, ___, 117 S.Ct. 1219, 1222, 137 L.Ed.2d 432 (1997).

I. Count One

Count One charged that Walsh stepped on Fowlks' penis sometime between January 4, 1991 and March 8, 1991. The government presented evidence that Fowlks was an inmate at the jail from January 1, 1991, through January 11, 1991, that he was released on January 11, 1991, but then was arrested again the same day and readmitted to the jail (Item 61, Exh. A). Fowlks was released on January 12, 1991, but then reentered the jail again on January 18, 1991, and remained there continuously until February 19, 1991 (Id).

Fowlks and former Orleans County Corrections Officer Joseph Kujawa testified as to the offense charged in Count One. Kujawa was a corrections officer at the jail from 1988 until he resigned on March 8, 1991, to join the Village of Medina Police Force. He said that he saw Walsh step on Fowlks' penis as Fowlks was locked in a holding cell on the ground floor of the jail.

Although Kujawa could not recall the exact date of this incident, he stated that it occurred sometime after the Christmas-New Year's holiday break, but before he resigned on March 8, 1991. During this time period, he explained that he was attending classes at a police academy which met on Tuesday and Thursday evenings from 5 p.m. to 10 p.m. and on Saturdays from 9 a.m. to 5 p.m. He testified that the event did not occur on a night when he attended classes. Kujawa reviewed the day sheets used by corrections officers to sign in and sign out. He noted that the beginning of his night shift and the end of the defendant's afternoon shift overlapped on non-school days seven different times from January 4, 1991, to February 19, 1991, on days when Mr. Fowlks was in jail.

Kujawa testified that one night between January 4, 1991, and March 8, 1991, he reported to work shortly after 11 p.m. He went to the kitchen on the second floor of the jail and chatted with other officers there. One of them was Walsh. Shortly before 11:30 p.m., Kujawa and Walsh left the kitchen and went to the ground floor booking area two floors below. The booking area has a small corridor with four holding cells that measure about four feet by six feet, and a booking room across the corridor from the cells. Walsh turned left down this corridor, a step or two ahead of Kujawa. The holding cells were to their right. Fowlks was in the cell at the far end of the corridor. This cell was different from others because it had no toilet or sink. Fowlks was kept in that cell often for making excessive noise, disturbing other prisoners, breaking things, or other misconduct.

Kujawa heard Fowlks shout repeatedly, "Big Jack, give me a cigarette." The defendant walked to the front of Fowlks' cell and said, "OK, Norvin, you know the routine, put your dick on the bars." Fowlks, naked inside the cell, placed his penis on a horizontal steel plate of the door to his cell. Walsh then grabbed two of the vertical cell bars with his hands, raised his right foot and placed it on Fowlks' penis while rising on the toes of his left foot as if he were climbing a ladder. Kujawa stated that Fowlks' eyes bulged and that he screamed in a voice louder than the screams that Kujawa had heard at the scenes of serious accidents. The incident took only a few seconds. Walsh then gave Fowlks a cigarette.

Kujawa testified that he did not report the incident initially because he knew that he was going to be taking a new job in only a few months as a police officer in Medina and did not want to cause any problems before he left.

II. Count Two

Count Two charged that Walsh stepped on Fowlks' penis sometime between May 26, 1992, and December 1, 1992. The government presented evidence that Fowlks was an inmate of the jail from May 26, 1992, through January 20, 1993 (Item 61, Exh. B). In addition to Fowlks' testimony, Corrections Officer Paul Sidari and former Corrections Officer Timothy Bourke testified as to Count Two.

Sidari testified that he saw the incident from a position just inside the door to the booking room across from the row of holding cells. The booking room entrance looks out to the narrow corridor lined by the four holding cells. Outside the door and to the left was the cell occupied by Fowlks. Sidari heard Fowlks ask Walsh for a cigarette. Walsh was holding a cigarette and slapped the clenched fist of one hand into the open palm of the other and said to Fowlks, "Who am I? Who am I?" Fowlks replied "Hammer Jack." Walsh then said, "If you want a cigarette, you have to put your dick on the bars."

Fowlks, in a standing position, placed his penis on a horizontal steel plate at a height about 27 inches above the floor. Walsh then grabbed two vertical cell bars with his hands, raised his right foot and placed it on Fowlks' penis, while rising on the toes of his left foot. Walsh rocked up and down while his right foot was on Fowlks' penis. Fowlks screamed in pain and held his genitals. Walsh then flipped a cigarette into the cell which Fowlks retrieved and smoked.

Sidari said that this occurred in 1992, but before his assignment to a different shift on December 1, 1992. By reviewing the sign-in sheets he was able to identify twenty-two days between May 26, 1992, and December 1 1992, when he, Bourke, and Walsh were on duty at the same time.

Former Corrections Officer Bourke testified that he saw the incident from a position in the corridor outside the booking room to the right of the booking room door frame. He recalled that there was someone who had dark hair and was shorter than he was who was also present in the corridor standing to Bourke's right. In a pre-indictment interview with the FBI, Bourke testified that this person was Corrections Officer Francis Woodward. However, at trial, Woodward testified for the defendant that he did not observe the incident described by Sidari and Bourke.

Bourke also reviewed the sign-in sheets and identified twenty-two days between May 26, 1992, and December 1, 1992, when he, Sidari, and Walsh were on duty at the same time. In addition, both Sidari and Bourke testified that there were three days when Sidari, Bourke, Woodward and Walsh were on duty at the same time.

III. Count Three

Count Three charged that Walsh stepped on Fowlks' penis sometime between May 26, 1992, and July 22, 1992. The government presented evidence that Fowlks was an inmate of the jail from May 26, 1992, through January 20, 1993 (Item 61, Exh. B).

Dwayne Holloman, who was an inmate at the Jail from February 18, 1992, through July 22, 1992, testified that he witnessed the offense charged in Count Three. Holloman said that one day when he was downstairs in the booking area sweeping the stairs, he saw Fowlks in one of the holding cells that had a sink-toilet fixture, as opposed to the first cell which did not. He was standing in the booking room across the hall from the cell when he saw Walsh in the cell with Fowlks. While Fowlks was lying on his back on the floor, Walsh stood over him and stepped on Fowlks' penis, mashing it as one might extinguish a cigarette with one's foot. Holloman heard Fowlks curse at Walsh in a loud voice as Walsh was stepping on Fowlks' penis.

A few days after the incident, Holloman talked with Fowlks and asked him if he was hurt. Holloman said that Fowlks told him that it didn't hurt "too much," but at trial Fowlks said it did hurt.

Also, while Holloman could not recall an exact date when the incident occurred, he said that at the time Fowlks had a bandage or cast on his hand when Walsh stepped on his penis. Fowlks went to the Erie County Medical Center on June 5, 1992, to have staples removed from a stab wound that he suffered to his hand four weeks before.

IV. Post Trial Motions

In support of his motions, defendant essentially has three arguments: (1) the government failed to prove the charges beyond a reasonable doubt because the evidence was insufficient to sustain a conviction; (2) the second superseding indictment failed to give the defendant adequate notice and time to prepare for trial; and (3) the prosecutor made improper arguments during the summations.

DISCUSSION

I. The Evidence was Sufficient to Sustain a Conviction

A. Legal Standard for Motion for Judgment of Acquittal

"A defendant challenging the legal sufficiency of trial evidence bears a `heavy burden.'" United States v....