United States v. Rushin

• Decision Date: 21 December 2016
• Docket Number: No. 14-15622,14-15622
• Citation: 844 F.3d 933
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Delton RUSHIN, Ronald Lach, Jr., Christopher Hall, Defendants–Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

844 F.3d 933

UNITED STATES of America, Plaintiff–Appellee,

v.Delton RUSHIN, Ronald Lach, Jr., Christopher Hall, Defendants–Appellants.

No. 14-15622

United States Court of Appeals, Eleventh Circuit.

Date Filed: December 21, 2016

Christine A. Monta, Dennis John Dimsey, Mark L. Gross, Teresa Kwong, U.S. Department of Justice, Civil Rights Division, Appellate Section, Tona M. Boyd, Forrest Christian, U.S. Department of

Justice, Chief Appellate Section Tax Division, Washington, DC, Ayesha N. Khan, U.S. Department of Justice, Civil Rights Division, Bethesda, MD, Paul C. McCommon, III, Michael J. Moore, U.S. Attorney, Michael Taylor Solis, U.S. Attorney's Office, Macon, GA, for Plaintiff–Appellee.

John Philip Fox, Fox & Smith, LLC, Debra Greta Gomez, Gomez Law Group, LLC, C. Brian Jarrard, C. Brian Jarrard, LLC, Macon, GA, for Defendants–Appellants.

Before CARNES, Chief Judge, JORDAN, Circuit Judge, and LAMBERTH,^* District Judge.

LAMBERTH, District Judge:

Appellants were correctional officers at Macon State Prison (MSP) in Oglethorpe, Georgia. Specifically, they were members of the Correctional Emergency Response Team (CERT), which is a specially trained group responsible for responding to and controlling disturbances at MSP. In 2013, appellants were indicted and charged with various civil-rights, conspiracy, and obstruction-of-justice violations stemming from alleged abuses of prisoners and subsequent cover-ups. Appellants Delton Rushin and Christopher Hall were ultimately found guilty of one count of Conspiracy to Obstruct, 18 U.S.C. § 371, and two counts of Obstruction of Justice, 18 U.S.C. § 1519. Appellant Ronald Lach was convicted of Deprivation of Rights in violation of 18 U.S.C. § 242, Conspiracy to Obstruct in violation of 18 U.S.C. § 371, and Obstruction of Justice in violation of 18 U.S.C. § 1519. Rushin and Hall appeal on four grounds, (1) that the district judge should have recused himself from the case, (2) that a district court limitation on the cross-examination of cooperation witnesses violated defendants' sixth amendment rights, (3) that the district court improperly excluded evidence of prior inmate violence, and (4) that the district court sentenced them improperly. Lach appealed only on the grounds that the district court judge should have recused himself. This Court has jurisdiction under 28 U.S.C. § 1291.

I.

Underlying this case are charges involving the beatings of several inmates at MSP. Specifically, the government alleged that appellants and others retaliated against certain inmates who hit officers. The CERT team would take the inmate to areas without cameras, often the gymnasium, and assault the still-handcuffed inmate. They would then take the inmate to the medical unit and lie about how the inmate's injuries were sustained. The CERT team would then write false witness statements that concealed the team's conduct while remaining consistent with one another. At trial the government presented four instances of this behavior.¹

1. The Assault on Franklin Jones

In October 2010, inmate Franklin Jones assaulted an officer. The CERT team, including the appellants, responded to the incident. They escorted Jones to the gymnasium where, while he was still in handcuffs, they repeatedly beat him. Jones was brought to the medical unit where he was treated for injuries that included a laceration on the back of his head, swelling in the bones around both eyes, and blood in his mouth and nostrils. Jones did not have those injuries before the CERT team escorted him to the gymnasium.

The CERT team then wrote reports on what occurred and omitted mention of assaulting Jones. At trial, two CERT team officers testified that they were taught to "write their statements to coincide with each other" and to write a report to make it appear "like nothing happened." When Internal Affairs came to investigate, Hall told them to "just stick to what [they] had on the statement."

2. The Assault on Jabaris Miller

A few days after the assault on Jones, inmate Jabaris Miller attacked an officer. The CERT team again responded, handcuffed Miller, escorted him behind the "ID" building, and assaulted him. As with the attack on Jones, two CERT team officers testified that they were told "exactly what to write" on their reports.

3. The Assault on Mario Westbrook

In December 2010, inmate Mario Westbrook attacked a deputy warden. The CERT team responded and escorted Westbrook from the building. The team took Westbrook to the gymnasium where they assaulted him. Westbrook was subsequently taken to the medical unit where he had abrasions, a laceration, and two black eyes. Westbrook did not have those injuries before being escorted to the gymnasium.

Rushin's report on the incident does not discuss the assault and only states that he "assisted with escorting inmate Westbrook" from "unit E1 to medical."

4. The Assault on Terrance Dean

Shortly after the assault on Westbrook, inmate Terrance Dean assaulted an officer. The CERT team again responded and Dean was escorted to the gymnasium. Dean was told "this is what you get for hitting an officer" before the CERT team beat him. Dean was beaten until he was unresponsive. He was dragged to the medical unit, unable to walk or speak. He had a five-inch wide hematoma on his head, abrasions on his face and feet, a lacerated upper lip, his right eye was dilated and unresponsive to light, and the nurse believed it was possible he would die. Dean was ultimately transported to a hospital. When he later awoke he had severe neurological problems and ultimately had to spend six months in physical therapy to relearn how to walk.

The CERT team agreed to doctor their reports on the incident. Each of their statements omitted any mention of the CERT officers using force against Dean. CERT officers testified against appellants. One testified that Hall instructed him to look at other statements and "make [his] statement match theirs." When one CERT officer went to meet with Internal Affairs investigators, Hall told him to "stick to what [he] wrote on the statement" and directed another to change his statements to make it consistent with other team member's statements.

II.

Less than three weeks before the trial began, appellants moved for the district court judge to recuse himself under 28 U.S.C. § 144 and 28 U.S.C. § 455. The basis for that motion was that the Judge had, while in private practice, litigated against the Georgia Department of Corrections. Additionally, during a pretrial hearing the Judge and counsel for defendants engaged in, as appellants describe it, a "spirited debate." Appellants maintain that the written transcript fails to convey the "tone of voice and emphasis, eye contact and body language" that they believe constituted and revealed bias against them. The Judge did not recuse himself. Additionally, the Judge stated that he would cut counsel's CJA voucher for time expended on the motion. Appellants now argue the judge should have recused himself and that he should not have cut counsel's CJA voucher.

Before oral argument, this Court addressed the issue of recusal in this case, affirming the district court. United States v. Rushin et al. , No. 14–15622, Doc. 85, 844 F.3d 933 (11th Cir. 2016). Defendant Lach had appealed only on the grounds that the judge should have recused himself. His appeal was fully resolved by that opinion, which found the judge did not err. The Court will not repeat the legal standards and analysis already articulated. They are equally applicable to Hall and Rushin's appeal on the issue of recusal given that the underlying facts are identical. For the reasons and legal authorities stated in that opinion, we find that the judge did not abuse his discretion with respect to the motion to recuse.

One additional issue raised in this appeal is the judge's decision to limit defendant Hall's counsel's CJA voucher. In general, "no appellate jurisdiction exists over an appeal of a district court's award of sanctions against counsel where the notice of appeal fails to make clear that counsel intends to participate as an appellant rather than as an appellant's attorney." Bogle v. Orange Cty. Bd. of Cty. Comm'rs , 162 F.3d 653, 660–61 (11th Cir. 1998). However, if an award of fees is joint and several against counsel and the client, "it would be unjust to refuse to hear counsel's appeal." Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter–Day Saints v. Associated Contractors, Inc. , 877 F.2d 938, 939 n. 1 (11th Cir. 1989).

The notice of appeal fails to make clear that counsel intended to participate as an appellant. Additionally, this is not a joint and several award of fees against a counsel and client. Accordingly, this matter is not properly before the Court.

III.

As noted above, multiple members of the CERT team cooperated with the government and testified at trial. Those individuals had entered into plea agreements with the government, and defense counsel wished to cross-examine them about their potential sentences had they not cooperated. For example, to elicit that a cooperating witness could have "cut a sweet deal for five years as opposed to 20." The government requested a limitation on defendants cross examining witnesses with regard to the specific numerical sentence that could have been imposed had they not cooperated, as this would speak to the potential sentences that could be received by the defendants and encourage jury ification. The district court judge granted this motion, explaining that defendants were permitted to inquire into whether the cooperating witnesses entered into a plea agreement, if they faced a "more severe penalty" prior to cooperating, and if the witness received or expected to receive benefits in exchange for their testimony such as charges being dropped or consideration of a sentence reduction. However, defendants were not permitted to inquire as to the statutory sentence range for charges against cooperating defendants.

At trial, defendants...