United States v. Shaw

• Decision Date: 30 May 2018
• Docket Number: No. 16-2860,16-2860
• Citation: 891 F.3d 441
• Parties: UNITED STATES of America v. Shawn D. SHAW, Appellant
• Court: U.S. Court of Appeals — Third Circuit

891 F.3d 441

UNITED STATES of America

v.Shawn D. SHAW, Appellant

No. 16-2860

United States Court of Appeals, Third Circuit.

Argued: September 26, 2017

Filed: May 30, 2018

Robert T. Pickett, Esq. [ARGUED], Pickett & Craig, 80 Main Street, Suite 430, West Orange, NJ 07052, Counsel for Appellant

Desiree L. Grace, Esq. [ARGUED], William E. Fitzpatrick, Esq., Mark E. Coyne, Esq., Office of the United States Attorney, 970 Broad Street, Room 700, Newark, NJ 07102, Counsel for Appellee

Before: SMITH, Chief Judge, McKEE and RESTREPO, Circuit Judges.

OPINION OF THE COURT

RESTREPO, Circuit Judge.

Appellant Shawn Shaw, a former corrections officer, was convicted by a jury of sexually assaulting a female inmate in violation of 18 U.S.C. § 242 and obstruction of justice in violation of 18 U.S.C. § 1512(b)(3). We will affirm.

I

In December 2010, E.S.¹ was a pretrial detainee incarcerated at the Essex County Correctional Facility ("ECCF" or "jail") in Newark, New Jersey. Shaw was a correctional officer employed at ECCF. Although Shaw had worked at the jail for five years, he had worked in the women’s unit only a handful of times. On December 27 and 28, 2010, Shaw was asked to cover the women’s unit alone during the overnight shift from 10:00 p.m. to 6:00 a.m. because the jail was short-staffed due to a snow storm.

When Shaw arrived for his shift, some of the women including E.S. "flashed" him with their buttocks as "sort of a hazing ritual to the new officer in the unit." App. 326. Shaw responded by making sexual comments to E.S., such as asking if he can "hit that," which E.S. understood to be a request to perform sexual acts. App. 327. Shaw also spoke over an intercom connected to the cell that E.S. shared with a cellmate, made explicit sexual advances, and threatened that he was "going to come in there" and "get [her] out of there." App. 329.

Shortly before 3:00 a.m. on December 28, 2010, E.S. awoke to Shaw in her cell.² Shaw removed E.S.’s pants, "forced himself on [her]," App. 332, by "[p]ressing down" his hand on her chest so that she was unable to get up, and digitally penetrated her vagina, App. 404. Shaw then removed his own pants and underwear and laid on top of E.S. with the weight of his body. Shaw proceeded to engage in sexual intercourse with E.S. who was unable to move and "felt like [she] couldn’t breathe." App. 404.³

E.S. did not immediately report the incident, but told a male inmate (via hand signals), her mother and her attorney. The male inmate reported the incident to the jail. When confronted, E.S. formally reported the sexual assault. She was examined by a Sexual Assault Nurse Examiner, and was found to have semen on her cervix. The Government later extracted a DNA mixture. An expert for the Government testified at trial that it was "approximately 28.9 million times more likely in the African American population" that E.S. and Shaw were the sources of the mixture, than if E.S. and a "randomly selected unrelated individual" were the sources. App. 610. Shaw is African American.

The Government also introduced electronic records of the cell doors at ECCF. The records established that E.S.’s cell door was opened on the night of the incident at 2:43:41 a.m. and closed at 2:50:39 a.m. The computer that opened the door was "TS 04" and Shaw was logged into TS 04 at that time. No one else logged into TS 04 during Shaw’s overnight shift.

Jail investigators also retrieved surveillance videos. Although there was no video of either E.S.’s cell or the TS 04 work station, the videos did show Shaw going on break and returning to the women’s unit slightly before the sexual assault. The surveillance videos refuted Shaw’s intimation to investigators that he was on break during the incident.

There was, however, a complication in interpreting the video evidence: the surveillance camera clocks were not synchronized with one another or with the clock associated with the cell door records. To synchronize the time stamps ex post , an ECCF maintenance information technician, Delfin Neves, used "arithmetic." App. 153. Neves calculated the "difference" between each surveillance camera clock and the clock for the facility systems. App. 152.⁴ He recorded the results in a chart listing the "drift" for each surveillance camera clock. App. 131.⁵

Using Neves’ chart, an ECCF investigator, Maria Theodoridis, adjusted the time stamps on the videos showing Shaw leaving and returning from break. After her corrections, the video evidence showed that Shaw left for break at 2:31:06 a.m. and returned at 2:37:46 a.m.—a few minutes before E.S.’s cell door was opened at 2:43:41 a.m.⁶

On December 31, 2010, Shaw gave a statement to investigators at the Essex County prosecutor’s office. Shaw denied making sexual advances to E.S., repeatedly and emphatically denied opening her cell door, and repeatedly denied even entering her cell. Shaw told the investigators that he left the women’s unit on his break "at like two thirty, two forty" for "about twenty minutes" and returned "maybe something about ... three o’clock." SA 5.

At trial, Shaw testified consistent with his prior statement. He denied making sexual comments to E.S., denied opening E.S.’s cell door, and denied having sexual intercourse with E.S. Shaw testified that he was on break "[n]o more than 20 minutes," but also agreed that it was more accurate to say that he was "only gone six or seven minutes." App. 764. Shaw also testified that male and female inmates were known to be engaging in sexual intercourse in the ECCF gym.

The jury convicted Shaw of deprivation of civil rights through aggravated sexual abuse, 18 U.S.C. § 242, and obstruction of justice, 18 U.S.C. § 1512(b)(3).⁷ The District Court sentenced Shaw to 25 years’ incarceration and 5 years’ supervised release. This represented a downward variance from the Sentencing Guideline range of life. This timely appeal followed.⁸

II

We begin by addressing Shaw’s claims related to his conviction for deprivation of civil rights by aggravated sexual abuse, 18 U.S.C. § 242. Shaw challenges (1) the District Court’s jury instructions and (2) the sufficiency of the evidence. We will describe the statute and then address each claim in turn.

A

A deprivation of civil rights under Section 242 of Title 18 occurs where a defendant "under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person ... to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States." 18 U.S.C. § 242. This is a Reconstruction Era civil rights law. United States v. Lanier , 520 U.S. 259, 264 & n.1, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). " Section 242 makes it a crime for a state official to act ‘willfully’ and under color of law to deprive a person of rights protected by the Constitution."

Hope v. Pelzer , 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) ; see also Lanier , 520 U.S. at 264, 117 S.Ct. 1219. The statute is "unusual for its application in so many varied circumstances." Koon v. United States , 518 U.S. 81, 101, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Among these, "[t]here are a multitude of cases in which prison administrators have been prosecuted under [ Section 242 ]." United States v. Guadalupe , 402 F.3d 409, 414 (3d Cir. 2005).

As is relevant here, Section 242 sets forth three statutory maximum sentences. First, the default maximum sentence is "imprison[ment] not more than one year." 18 U.S.C. § 242. Second, "if bodily injury results ... or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire" the statutory maximum is "imprison[ment] not more than ten years." Id. Third, "if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse , or an attempt to commit aggravated sexual abuse, or an attempt to kill" the statutory maximum is life imprisonment or death.⁹ Id. (emphasis added); see also Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322 § 320103 (1994) (enacting, inter alia , increased statutory maximum sentence for aggravated sexual abuse or its attempt).

In the case before us, the Government charged Shaw with both the base and aggravated violations of Section 242. As to the base offense, Shaw was charged with depriving E.S. of due process through unwanted sexual contact so egregious as to shock the conscience. See Lanier , 520 U.S. at 261, 117 S.Ct. 1219 ; United States v. Giordano , 442 F.3d 30, 47 (2d Cir. 2006). As to the aggravated offense, the Government charged Shaw with, inter alia , a violation of civil rights through "aggravated sexual abuse." App. 20.

Section 242, notably, does not define the term "aggravated sexual abuse." 18 U.S.C. § 242. While this Court has not yet addressed the issue, a number of our sister Circuits have defined the term by reference to the federal aggravated sexual abuse statute, 18 U.S.C. § 2241, excluding its jurisdictional requirements. See Cates v. United States , 882 F.3d 731, 736 (7th Cir. 2018) ; United States v. Lanham , 617 F.3d 873, 888 (6th Cir. 2010) ; United States v. Holly , 488 F.3d 1298, 1301 (10th Cir. 2007) ; United States v. Simmons , 470 F.3d 1115, 1120 (5th Cir. 2006). Likewise, the Government used this definition in its indictment of Shaw, and the parties agree on appeal that this was appropriate. As such, we will employ this approach, defining aggravated sexual abuse for the purposes of Section 242 by reference to 18 U.S.C. § 2241(a).

Aggravated sexual abuse under Section 2241(a)"prohibits forced sexual acts against another person." Lockhart v. United States , ––– U.S. ––––, 136 S.Ct. 958, 964 n.1, 194 L.Ed.2d 48 (2016) (quotation marks omitted). The statute is violated where the offender "knowingly causes another person to engage in a sexual act—(1) by using force against that other person; or (2) by threatening or placing that other person in...