United States v. Gray

• Decision Date: 31 August 2012
• Docket Number: No. 11–3143.,11–3143.
• Citation: 692 F.3d 514
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. John E. GRAY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

692 F.3d 514

UNITED STATES of America, Plaintiff–Appellee,

v.John E. GRAY, Defendant–Appellant.

No. 11–3143.

United States Court of Appeals, Sixth Circuit.

Argued: March 1, 2012.

Decided and Filed: Aug. 31, 2012.

ARGUED:Spiros P. Cocoves, Toledo, Ohio, for Appellant. Angela M. Miller, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF:Spiros P. Cocoves, Toledo, Ohio, for Appellant. Angela M. Miller, Jessica Dunsay Silver, United States Department of Justice, Washington, D.C., Roger S. Bamberger, United States Attorney's Office, Cleveland, Ohio, for Appellee.

Before: SILER, ROGERS, and WHITE, Circuit Judges.

OPINION

SILER, Circuit Judge.

John Gray was found guilty of depriving the rights of Carlton Benton under color of law in violation of 18 U.S.C. § 242, and of falsifying documents in violation of 18 U.S.C. § 1519. Gray appeals this decision on the grounds of inadequate jury instructions,inappropriately applied sentencing enhancements, and insufficient evidence to establish a violation of 18 U.S.C. § 242. For the reasons that follow, the decision of the district court is AFFIRMED.

I.

Gray worked for the Lucas County Sheriff's Office (“LCSO”) in 2004 when Benton, a pre-trial detainee in the custody of LCSO, was hospitalized as a result of an episode of seizures. On May 30, 2004, the hospital discharged Benton, and LCSO officers returned Benton to the jail. Benton aggressively resisted these officers. After a struggle, the officers were able to put Benton in double handcuffs, leg shackles, and a belly chain. Benton returned to jail still in these restraints. Gray and five other officers escorted Benton to the jail's Medical Unit.

When they reached Benton's cell in the Medical Unit, Benton was supposed to be placed on a bed and have his restraints removed. However, when the officers attempted to remove the restraints, Benton resisted and threatened to fight the officers once the restraints were removed. While Benton was still restrained, Gray moved to the head of the bed and placed Benton in a carotid restraint or a “sleeper hold.” ¹ Benton lost consciousness. Gray ordered the remaining officers to remove Benton's restraints. Officer Mangold heard Benton's choking sounds and told Gray to stop, but Gray did not let go. After the restraints were removed, Gray ordered the other officers to leave. The other officers noted that Benton was lying silent and motionless on the bed when they left. Despite the LCSO requirement that correctional officers are to seek medical attention any time force is used or an inmate is injured, Gray did not inform any medical personnel about the events that occurred that day. Gray admitted in a subsequent interview that he heard Benton's gurgling sounds and knew he should have told a nurse about the situation.

Approximately ten minutes later, a deputy, who was doing rounds, entered Benton's cell and discovered that Benton was neither conscious nor breathing. Despite the best efforts of the deputies and the paramedics, Benton was declared brain dead and removed from life support on June 1, 2004.

All officers who escorted Benton to the Medical Unit were asked to write reports that would be given to the sheriff. Gray wrote two such reports, a Critical Incident Report (“CIR”) and a Shift Commander's and Floor Supervisor Report (“SCFSR”). Neither mentioned the restraint hold or that Benton went unconscious as a result of the hold. All of the reports about Benton were provided to the Lucas County Coroner on June 2, 2004 for use in conducting an autopsy. From his training, Gray knew that the hold he used does not leave marks that would have been detected by the autopsy. Following the fabricated reports, Gray lied to an Internal Affairs investigation about applying pressure to Benton's neck. Based on the information available at the time, the coroner pronounced Benton's death a result of natural causes.

Pursuant to the LCSO's Physical Force Policy, officers are required to write reports which thoroughly document the use of force against an inmate. When an inmate dies, the coroner is typically provided with any incident reports regarding the death. The corrections administrator for LCSO recognized that, prior to releasing these documents, he had to check with the sheriff because he is in a fiduciary position and the coroner is an outside agency.

The coroner's verdict deprived the Lucas County Prosecutor of the opportunity to present a homicide case to the grand jury. Similarly, the public record deprived the United States Justice Department of the ability to properly investigate federal charges until 2008. The external investigation into these events began in 2008 due to statements by an LCSO correctional officer made at a disciplinary hearing. The officer stated, in a way that prompted suspicions about the Benton incident, that “people could be killed and no one lose their job.” The results of the investigation were turned over to the Lucas County Prosecutor who, out of concern for conflict of interest, submitted them to the U.S. Attorney's office.

Special Agent Brian Russ of the FBI was assigned to the case and began his investigation by using a grand jury subpoena to get access to the LCSO materials related to the case. Agent Russ initially tried to visit Gray at home to conduct an interview. However, after this attempt failed, Agent Russ was able to interview Gray in July 2008. In that interview, Gray specifically denied using a sleeper hold on Benton and rendering him unconscious. Gray again denied these actions in an interview in October 2008. It was not until Agent Russ described his investigation and its results that Gray admitted both that he used the sleeper hold and that Benton became unconscious as a result. Agent Russ estimated that he interviewed over 60 witnesses in this case. The coroner changed her verdict about Benton's death to homicide once she received information regarding the sleeper hold.

In 2009, an indictment was returned in the Northern District of Ohio charging Gray with two counts (1 and 2) of civil rights violations under 18 U.S.C. § 242, two counts (4 and 5) of falsifying and making false entries in a document in violation of 18 U.S.C. § 1519, and one count (9) of making false statements to an FBI agent in violation of 18 U.S.C. § 1001. Count 1 is distinguishable from Count 2 because Count 1 charges Gray with assaulting and strangling Benton while acting under color of law, whereas Count 2 charges Gray of acting with deliberate indifference to the serious medical needs of Benton. Both Counts 4 and 5 charge that Gray knowingly falsified and made false entries in a document but apply to the CIR and the SCFSR respectively. The indictment also charged Deputy Sheriff Jay Schmeltz with, among other things, two violations of 18 U.S.C. § 1519. Gray and Schmeltz chose to stand trial together. Gray was found guilty of Counts 2, 4, and 5 and Schmeltz was convicted of one violation of 18 U.S.C. § 1519.

At sentencing, the district court added six levels to a base offense level of 12 for Count 2 because it was committed under color of law. Pursuant to USSG § 3A1.3, the court added two additional levels because the victim was restrained during the offense. These enhancements led to an adjusted offense level of 20 for Count 2. The base offense level for Counts 4 and 5 was 14. Pursuant to USSG § 2J1.2(b)(2), this base level was increased by three because it involved substantial interference with the administration of justice. Pursuant to USSG § 2J1.2(b)(3)(B), the offense level was increased by two because it involved the selection of any essential or especially probative record, document, or tangible object, to destroy or alter. Counts 4 and 5 had an adjusted offense level of 19. After a multi-count adjustment pursuant to USSG § 3D1.4, the greater adjusted offense level was chosen, and two levels were added to it. This calculation yielded a combined offense level of 22 which, in conjunction with Gray's criminal history, provided a guideline range of 41 to 51 months imprisonment. Due to Gray's history of public service, the district court imposed a below-guidelines sentence of 36 months.

II.

Gray argues that the district court erred with respect to four separate issues during his trial. First, he contends that the district court should have required the jury to find a nexus between the defendant's conduct and the federal investigation involved in § 1519. Second, he argues that the jury instruction for Counts 4 and 5 required a specific unanimity instruction. Third, he claims that the district court's use of acquitted facts in sentencing was unconstitutional and that several of the sentencing enhancements should not apply to this case. Finally, he believes that the evidence is insufficient to support his conviction under 18 U.S.C. § 242.

A. Nexus Requirement

We review a district court's decision not to give a requested jury instruction for abuse of discretion. United States v. Henderson, 626 F.3d 326, 342 (6th Cir.2010). Gray contends that it was an error for the district court to refuse his proffered jury instruction which included requiring the jury to find a nexus between his obstruction and the federal investigation in 18 U.S.C. § 1519. The cases on which Gray relies establish that, in the context of other statutes, obstruction of justice requires a nexus between the proscribed conduct and some other set of facts. See Fowler v. United States, ––– U.S. ––––, 131 S.Ct. 2045, 2052, 179 L.Ed.2d 1099 (2011) (finding that under 18 U.S.C. § 1512(a)(1)(C) the government must prove that, had the murder victim been allowed to communicate with law enforcement officials, it is reasonably likely that at least one of those officials would have been a federal law enforcement official); Arthur Andersen LLP v. United States, 544 U.S. 696, 707–08, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005) (requiring that, in order to violate 18 U.S.C. 1512(b)(2)(A), the...