United States v. David W. Lanier

plan not an termined it was ERISA procedure by which em-

“GM established

ployees elect to receive a could one-time

lump payment they working at ceased

plant. plan ongoing, was not nor was The any continuing

there need for administration Wells, program.” payment

at 176. the VTEP is offered to work- Once Bank, particular eligible

ers JOBS

employees and the amount of the severance predetermined through are

benefit collec- therefore, bargaining process;

tive GM does

not exercise discretion over the execu- agree Accordingly,

tion of the VTEP. we

with the court that the is not an Wells VTEP employee plan.

ERISA welfare

Apparently, plaintiffs, one of the Edith

Shannon, early accepted through retirement Program. pension Pension JOBS clearly

program regulated by is ERISA.

Nevertheless, correctly the district court en- summary judgment against

tered Shannon complaint allege

because the does fiduciary duty

GM breached its relates rather, pension program; the com-

plaint misrepresentations focuses on made

concerning the Bank. JOBS

III. reasons, foregoing grant

For the

summary judgment in favor defendant is

affirmed. America,

UNITED STATES of

Plaintiff-Appellee, LANIER, Defendant-Appellant.

David W.

No. 93-5608. Appeals,

United States Court of

Sixth Circuit.

Argued Aug. 1994. Aug.

Decided

641 (ar- Silver, D. E. Chandler Thomas

Jessica Justice, briefed), Dept, of Civ. gued and Section, Div., Washington, Appellate Rights DC, plaintiff-appellee. for briefed), (argued by prosecu- defendant was denied a fair trial Wayne Emmons TN, defendant-appellant. Memphis, throughout pro- for torial misconduct the trial (10) cess; jury whether the instructions were Lanier, pro David se. W. (11) improper prejudicial; whether the MILBURN, in enhancing district court erred KEITH and Circuit Before: WELLFORD, justice for Judges; and Senior Circuit sentence obstruction of under Judge. Sentencing United States Guideline (“U.S.S.G.”) (12) 8C1.1; § whether the dis- MILBURN, Judge, Circuit delivered the imposing trict court erred in a fine and costs court, KEITH, in which opinion of the (13) incarceration; whether the district WELLFORD, Judge, joined. Senior Circuit determining court erred in defendant’s base 666), (p. separate Judge delivered a Circuit (14) level; offense whether im- the sentence concurring opinion. posed by disproportion- the district court was Eighth ate to the offenses under the Amend- MILBURN, Judge. Circuit (15) ment; and whether the district court appeals Defendant David W. Lanier refusing depart erred in downward from convictions, imposed and the sentences applicable sentencing guidelines under thereon, depri- of the willful of seven counts § 5K2.0. For U.S.S.G. the reasons that fol- rights color of law of the civil vation under low, we affirm. in violation various female individuals (1) appeal, § 242. the issues are U.S.C. On government proved

whether the the essential I. beyond § 242 elements of 18 U.S.C. reason- (2) doubt; district court able whether the 20, 1992, May grand jury On a federal refusing abused its discretion sever the violating indicted defendant on 11 counts of (3) defendant; charges against trials of the 18 U.S.C. 242. At the time of the indict- refusing the district court erred in whether ment, chancery defendant was the elected ground to dismiss the indictment on the Dyer judge court and Lake Counties in give it failed to notice to the defendant of the Tennessee, juvenile he where also served as (4) defend; charges required he was only judge. court As the chancellor and refusing whether the district court erred in counties, juvenile all of said ground to dismiss the indictment on the that courts, employees including of each of the statute, 242, impermissi- 18 U.S.C. secretaries, clerks, officers, juvenile and (5) bly vague; whether the district court pleasure worked at the of defendant Lanier. excluding concerning in erred evidence alleged The indictment that between 1988 prior activity prior drug and use of sexual sexually eight and defendant assaulted (6) witnesses, Archie; one Vivian women who either worked for him at the the district court abused whether its discre- court, chancery him state worked for or with refusing grant one-day in to a continu- tion juvenile Dyer County, in the court of or had newspaper of the trial ance local pending a case before defendant. Count of containing story about the case was found alleged July in the indictment that prior in room commencement defendant, law, (7) acting under color of state trial; of the whether the district court Wallace,1 sexually assaulted Patricia an em- failing grant in erred a mistrial based (8) Dyer County, statement; ployee of the Circuit Court of upon prosecutor’s opening liberty pro- depriving her of her without due prosecutor prosecuto- whether the committed cess; namely, right to be free of sexual closing argument by rial misconduct in his alleged indictment that defen- improperly vouching prosecution assault. The for witness- es, statements, maMng inflammatory willfully dant touched Wallace on and near and (9) names; calling her crotch and otherwise molested her. the defendant whether the publicity surrounding herein. We 1. In view of all the we have used the victims' names have done this had the circumstances trial of this matter from the various media and would not seal, fact that was not filed been the record under otherwise. in 1982. Defen- similarly- ty-Ninth Judicial District indictment 3 of the Counts and May in 1990. He continued to period from dant was reelected during the alleged that sexually chancery judge until assaulted as a court he was serve August defendant Dyer Sanders, position pending of the resolution employee removed from his an Sandra al- The indictment case. County Court. of this Juvenile willfully grabbed Sand- leged that defendant judge, prin- chancery court defendant As and otherwise mo- and buttocks ers’ breasts divorces, probate mat- cipally presided over her. lested ters, boundary disputes. Although the and similarly indictment 4 and 5 of the Counts jurisdiction circuit court also has concurrent September or October alleged that in either cases, chancery along with court over divorce sexually Patty Ma- assaulted defendant percent presided defendant over 80 Chancery honey, employee of the Court an Counties, Dyer in and the divorce cases Lake alleged County. Dyer The indictment support other matters including child and Mahoney’s willfully grabbed defendant divorce cases. related to the buttocks, pelvis his touched breasts and stated, juve- earlier defendant also served as her. body, otherwise molested her in said counties. nile likewise of the indictment Counts 6 and 7 Sandy In defendant hired Sanders (Count 6) and alleged September Dyer Youth Officer of the be the Service (Count 7) defendant again in October County Juvenile Court. Sanders was su- by willfully sexually Archie assaulted Vivian During pervise the Youth Service Office. coercing engage in sexual acts with her to interview, job her defendant told Sanders Lanier, bodily which resulted hiring authority that he had sole injury 8 of the indictment to her. Count position. Youth Service Officer during period from similarly alleged that authority Youth also had the to fire the February through May defendant sexu- Service Officer. Sandy Attaway, employee an ally assaulted duties, part job As of her Sanders was Dyer County, by Chancery Court required weekly meetings de- to have willfully touching pelvis his to her buttocks by performed fendant to review the work her molesting her. and otherwise During weekly meetings, office. one of these alleged Similarly, count 9 of the indictment chambers, which occurred in defendant’s de- February March de- either desk, got up from sat fendant beside Sipes by sexually Ruby assaulted fendant chair, and, during Sanders their conver- genitals willfully exposing his to her sation, grabbed squeezed her breast. engage in sexual acts with him. urging her to upset and tried to remove Sanders became similarly alleged 10 of the indictment Count hand; however, told sexually as- April her not to be afraid. willfully coercing saulted Lisa Couch meeting quickly left the as Sanders him, resulting engage to in sexual acts with anyone possible. did not tell about what She Finally, bodily injury count 11 of in to her. thought had occurred because she that no similarly alleged Sep- that in the indictment her one would believe since defendant was assaulted Fonda tember defendant community. influential in and was willfully and Bandy by grabbing her breasts Subsequently, telephoned defendant Sanders crotch, molesting her. and otherwise him. and told him she needed to meet with began trial on November Defendant’s chambers, told him She went defendant’s 16, 1992. The and concluded on December actions, appreciate she did not his and re- presented at trial showed de- evidence apology an from him. ceived County, Dyer in Tennes- fendant was born weekly see, virtually all his life. continued to have meet- had there Sanders and lived However, prominent ings defendant. after she politically with Defendant is from a actions, began mayor confronted him about his he family. alderman and He served as work, Tennessee, being complaining quality about the of her Dyersburg, first before and, away eventually, superviso- took her Chancery Judge of the Twen- he elected Court phoned authority. testified that she be- defendant from her home and in- ry Sanders away him supervisory Mahoney her of her decision. lieved defendant took formed went day authority in for her confrontation to work the next and met with retaliation defendant in crying, him. testified that she considered his chambers. She broke down She job, telling job in her him that quitting her but she remained she needed the and want- help- him position point, she believed she was ed to leave her alone. At that her, put ing the children she worked with. defendant his arms around lifted her floor, aggressively off hugged and her. that he was often alone Defendant testified Then, part with one hand on the lower chambers; however, he with Sanders his back, Mahoney’s defendant slid her down his touching breast. He testi- denied ever her body pressed pelvis against and his her. incident, prior alleged he and fied that night, Mahoney That same called defendant hug other as a would and kiss each Sanders quitting. him and told she was She worked friendly greeting. testified job. one more week because she needed the stopped such behavior after Sanders told he Rone, hugging longer Mahoney’s, him she was no comfortable Dinah a friend of testi- during meeting him. fied that she had with Mahoney, Mahoney distraught became Patty In fall of defendant hired keep told Rone that defendant would not his secretary. Mahoney Mahoney to be his was Mahoney off her. hands Rone testified that young chil- recently divorced and had two also told her that when she told defendant Mahoney support. understood that dren going quit job, picked she was her he her supervisor was her and had the up body against and rubbed his her. Mahoney power to fire her. was uncomforta- trial, because she felt that he At defendant denied that he ble with defendant ever inappropriately hugged during Mahoney her her touched in a sexual had manner or However, grabbed job accepted she either her breasts or interview. buttocks. because, college job person for a without a defendant testified that he and Ma- job degree, good Dyersburg. honey hugged every day. it was Mahoney grew up Dyersburg testified that she worked for de- Vivian Archie weeks, quit family. it acquainted fendant for two but she when with the Lanier She going gave daughter. apparent became that he was not to married 1988 and birth to a following year. leave her alone. testified that while she She was divorced the Defen- She chambers, presided proceedings would over worked he dant her divorce hug custody daughter her or touch her on her breasts or and awarded the of her By day employ- the second of her her. buttocks.

ment, began firmly place living In was out of work and Archie hands on her breasts. job parents. with her Archie learned that a

Mahoney testified that defendant eventual- was available at the courthouse. She went courthouse, ly aggressive, grabbing application filled out an for a became more breasts, squeezing just plac- position, rather than secretarial and met with defendant ing confronted him in his chambers. At the outset of their meet- his hands on them. She behavior, ing, told that her father about his but he told her that she Archie reported day. to see him that his behavior would hurt her more had come Mahoney than it hurt him. testified said that Archie’s father had told him that would mother, family good and he powerful, that since the Lanier was so she was not wanted custody if thought she that no one would hire her she of her child.

reported defendant’s behavior. frightened and asked de- Archie became going daughter

Despite her confrontation with defendant fendant if he was to take her being away her. Defendant told her that he and her efforts to avoid alone from defendant, touching grabbing and of Ma- could not talk about it because he was the preside honey’s daily continued on a basis. who would over such ease. breasts Mahoney that he had al- deciding quit, After she would tele- Defendant then told Archie not, parents her would lieving that she did job to someone else. ready promised the her and defendant would job and be furious with she needed the replied that Archie parents that she had told her about job. believe anything get to She testified do would because, otherwise, the assault. de- this that she stated leverage to take her child have fendant would chambers, at defendant’s she arrived When away. position in the he told her about secretarial leave, Lynn Archie told de- of Dr. Warner. ready to she office When Archie was knew where Dr. office fendant she Warner’s to shake defendant’s across the desk reached he had been her doctor grabbed her was located because point, defendant hand. At that they was a child. While were hand, the end of his since she pulled around to her talking, walked around his desk desk, defendant her hair and neck. When grabbed get to out of the stop to towards Archie. She tried to and tried told defendant Archie room, slammed the door closed and and tried but he away, twisted her neck push him he stop, him began kissing her. She told but kept pulling Ar- to fondle her. Defendant into neck, and, began pulling her hair and threw her finally, he turned he chie’s hair and “no,” saying defendant a chair. As she was her into a chair. Defen- around and threw himself, head, her, again exposed turned her time she to kiss and each dant then tried open, pulled mouth and forced her away, squeeze her neck her get he would tried During period, this defen- perform Ar- oral sex. Finally, stood over defendant harder. hair, grab Archie chie, pulled her head dant continued exposed penis, his shoulders, pull squeeze her neck and her jaws open. He then forced his down and her back, great pain. pelvis all of which caused her his head penis mouth and moved into her during period Archie testified that great force. Archie and forth with back having jaw. crying, gagging, choking, and throat and she was that this hurt her testified ejaculat- breathing. again trouble ejacu- stop until he had did not crying in her mouth. She ran into ed Archie, who was in Archie’s mouth. lated up mouth and face bathroom and cleaned her crying, got up and went into defendant’s go job so that she could to her interview. and face so that bathroom to clean her mouth report Archie did not either of the assaults the courthouse. Archie testi- she could leave home, custody ease had been in got her head was because her child she fied that when hair; court, and she was afraid that pulled had her defendant’s tender where defendant daughter away sore, would take her and when she brushed her neck was it, Archie testified that she subse- pulled some from her. her hair defendant had where quently met with defendant and that he Archie also testified of her hair fell out. anything anyone her if she had said when defendant attacked asked she did not scream why and also asked she had not been back incident because she report her or then asked Archie how custody of her child see him. Defendant take afraid he would going. family life was Archie testified her from her. interpreted remarks to that she later, telephoned A few weeks permit keep her to cus- mean that he would he and told her mother Archie’s residence tody daughter if she did not tell job not tell for her. Defendant did had happened. anyone what had job interview mother where the Archie’s Rather, trial, acknowledged At that he he told her moth- would be located. on by his was alone with Archie his chambers have to come er that Archie would mentioned her testi- get Archie was both of occasions chambers to the information. defendant; however, assaulting her or mony, he denied ever at her but reluctant to call testified that insistence, having tele- oral sex with her. He she returned his mother’s job looking to him for a and he Although repeatedly Archie came phone call. Archie available, but he job her he did not have one her where the told asked defendant to tell He was, know if he learned of one. that she return to would let her interview he insisted telling met admitted Archie that he had information. Archie also his chambers for the that her father wanted to her father and returned to defendant’s chambers be- then getting custody of and Delta All of go about Willis. these witnesses tes- know how to they daughter. tified that had known Archie for a Archie’s lengthy period of time and that she had a that he told Dr. War- Defendant admitted reputation for untruthfulness the commu- joba and that he set ner that Archie needed nity. for her with Dr. Warner. up an interview Sandy that he told Archie In March defendant hired Att- Defendant also admitted away, age secretary. so he could tell her to be his After to come to his chambers work, began making testi- first month of the interview was. Defendant defendant where Attaway. Archie did come to his chambers sexual comments to He told Atta- fied that way money they to Dr. for the that he would loan her and that he sent her Warner payment. could work out a He interview. also asked Attaway what she would do for him if he let Dr. testified as a defense witness. Warner Finally, her off from work. defendant told that Archie never told him that He testified Attaway that he knew how he could relieve her to have sex with him. defendant forced her stress and she could relieve his. Atta- cross-examination, testified that On Warner way these comments referred to believed requested him Archie did tell that defendant sex. performed oral sex. oral sex and that she Attaway on Defendant also asked Dr. Warner also testified cross-examina- she were defendant, Archie with afraid of him. She testified that she told him tion that he discussed “no,” untrue, might although him that Archie be that was because she and defendant told result, him willing provide sexual favors. As a did not want to think she was weak and agreed to interview Archie for the could be intimidated. Defendant told Atta- Warner job. way judge, everyone he was should be afraid of him. job day interview and after

On assault, alleged second tele- then went from sexual com- physical Attaway. him phoned to tell that Archie was ments to contact with He Warner way During began hitting on her to see him. their tele- her on the buttocks when she conversation, Attaway phone told Warner walked him. when was job. “anything” sign him that Archie would do for chambers have defendant’s. prearranged signal papers, from defen- some he walked around behind her This was a willing dant to Dr. that Archie was and threw his arms around her. Defendant Warner pushed pelvic Attaway’s perform sexual favors. Warner testified then his area into words, began making grinding magic that after said the buttocks and mo- penis an and he hired tion. could tell that defendant’s Archie came interview She rubbing erect because she felt him her. Attaway yelled against her. then at defen- Johnson, Leigh daughter, Ann stop. dant to He told her to lower her voice testified for the defense. Johnson testified courtroom, people because there were that she had known Vivian Archie all of her they and defendant was afraid would hear pathological liar. life and that Archie was a Attaway. Archie, Fleming, Colleen a friend of cousin, Attaway Fleming testified that she told her testified for the defense. testified Brock, incident. Brock testi- that after both of the sexual assaults were Tina about the that, Attaway occurred, telephone, told alleged to she a conversa- fied over the have had Archie, up during her that defendant had come behind her tion with this conversa- tion, pelvic area into her buttocks. Archie stated that she had never had and rubbed sex with defendant. Attaway quit not after the assault be- did job. addition, three

In other testified cause she needed the seven witnesses later, Attaway were: months defendant terminated for the defense. These witnesses McDevitt, sister; working ground things were Forsythe Donna Archie’s on the Johnson; Underwood; Attaway saw defen- Larry Kathy out. testified that she Keith Willis; Green; Walker; after he had terminat- dant at the courthouse Heather Stewart pending at they uals had cases before defendant her, told her would and defendant ed Bandy, meeting time of his with and along if she had liked to gotten fine have Bandy and had discussed their defendant have oral sex. Bandy not re- eases. testified that she did Attaway’s regarding testified Defendant with because he port the incident defendant sexually assaulting denied allegations. He many a and she did not want too was way. her people to about it. know Bandy with fall of Fonda met In the testified and admitted that he Defendant concerning her in his chambers defendant Bandy alone in his chambers. had met program, Drug Free Pub- for a federal work sexually assaulting Bandy. He denied ever Bandy implement to Housing. lic wanted that Defendant also testified after their parents classes for program parenting new Bandy meeting, came over to him and housing public and had children who lived him. hugged and kissed juvenile defendant court. Since before juvenile judge, Bandy ar- was the trial, At the close of the the district court program ranged presentation about granted judgment for a defendant’s motion parents hoped that he would refer him. She acquittal on count 9 of the indictment. On part of their children’s program to her as 18,1992, jury found December defendant sentencing. 1, 3, guilty not on counts and 10 of the indictment. returned Bandy’s presentation, After 4, 5, 7, 8, guilty on counts and verdicts questions program. about the asked her some 11 of the indictment. Bandy began asking person- Defendant then questions, or not she was al such as whether Sentencing hearings were held on March married. 12, 1993, April April 26 and On began year’s she was sentenced to one im-

Bandy testified that when chambers, 2, 4, 5, 8, put prisonment he his arms on each of counts leave defendant’s years’ kissing her. As she 11. Defendant was sentenced to ten around her and started away, put pull imprisonment on each of counts 6 and 7. tried to turn pulled hands behind her head and Defendant’s sentence on each count was to one of his others, consecutively began then result- up her to him. Defendant be served years’ Bandy’s ing imprison- and she tried in a total sentence of 25 fondle one of breasts away. eventually push him When she ment. Defendant’s sentence was to be fol- release, free, years supervised pulled Bandy saw that defen- lowed two herself $25,000. pay lipstick him. and he was ordered to a fine of dant had all over pay, defendant was ordered panicked, Bandy shaken and she incarceration, $1,492 per month dur- costs up went into the bathroom to clean herself incarceration, ing period provided of his After leaving before defendant’s chambers. entitled to did re- that he was receive and bathroom, Bandy she left the had walk pension from the of Tennessee. ceive State past defendant’s desk to exit his chambers. timely appeal This followed. defendant, sitting by, who was As she walked dopr, on the of his desk nearest end II. put Bandy’s on

reached out and his hand Bandy momentarily hesitated and crotch. A. kept walking on towards the door. De- then door and told fendant followed her to the government back, would have all the that if she came she necessary prove failed to all the elements of program. that she wanted for her new clients beyond a violation of U.S.C. rea- Specifically, Bandy she never returned to sonable doubt. he asserts testified that government failed to show that he was see defendant because she did want to acting color of law when he assaulted go through have that kind of treatment under victims, government failed to again. only two individ- his referred willfully, government Bandy’s program. uals to individ- show he acted These two

651 States, 91, In v. failed to show that his actions denied the Screws United 325 U.S. victims, 105, 1031, 1037, 1495, rights of his and that 65 S.Ct. constitutional 89 L.Ed. (1945) Supreme failed to that government the show Vivian the Court stated that any bodily injury. Archie suffered willful require- violators of constitutional ments, defined, certainly which have been support exists to Sufficient evidence position say they are no to that had no if, viewing after the evidence in conviction adequate they advance notice that would light prosecution, the most favorable to the punishment. be they visited with When any accept rational trier of fact could the willfully act in the sense in which usewe establishing each essential ele evidence as word, they open the act in defiance or Virginia, of crime. See Jackson v. ment the disregard reckless of a constitutional re- 324, 2781, 2792, 99 61 U.S. S.Ct. quirement specific which has been made (1979). § 242 L.Ed.2d 560 Title 18 U.S.C: and definite. (1969 Supp.1994) & states: Thus, the decision Screws established Whoever, law, statute, any under color of process “that right once a due has been ordinance, custom, regulation, willfully or decisions, specific by defined and made State, subjects any any inhabitant of Terri- right encompassed by is 242.” United any tory, deprivation or District to the of Cir.), Hayes, States v. 589 F.2d rights, privileges, or immunities secured or 444 U.S. protected by the or laws of Constitution (1979). L.Ed.2d 60 States, punish- the United or to different ments, pains, penalties, or on account of In government established alien, being by an or defendant, such inhabitant rea- of State Tennessee color, race, pre- son of his or than are judge, violated the victims’ constitutional citizens, punishment scribed of for the right; namely, right bodily integrity. their $1,000 shall be not than or Further, fined more right bodily integrity has imprisoned year, not more than one or specific by been defined and made court deci- both; bodily injury and results shall be right sion. to be of “[T]he free state-occa- imprisoned fined under this title or damage person’s bodily sioned integrity both; years, [Fjourteenth more than ten or and if death protected by ... [is] subject imprisonment results shall be guarantee process, [A]mendment due years or term for life. guarantee [FJourth [A]mendment right people of ... [T]he to be secure their gov Defendant first that the persons, applicable made the states deprived ernment did not establish that he Jamieson v. [F]ourteenth [AJmendment.” right. the victims of a constitutional In his Shaw, (5th Cir.1985) 772 F.2d appeal, acknowledges brief on (citations omitted). quotations “‘It is position at trial he took the that “freedom places settled now ... that the Constitution recognized from sexual assault” was a consti right limits on a with a State’s interfere states, however, right. tutional He after ” person’s bodily integrity.’ Canedy ... further research and consideration he has (7th Cir.1994) Boardman, 16 F.3d changed position appeal. on Brief of —Casey, (quoting Planned Parenthood v. Nevertheless, Appellant although at 18-19. -, 2791, 2806, -, defendant asserts that after research and (1992)). L.Ed.2d 674 has consideration he determined free recognized liberty dom from sexual assault is not a Individuals also have a “historic right, authority proposi encompassing] he cites no for this interest ... freedom from n bodily punishment.” tion in his brief.2 restraint principle 2. The First Circuit has stated that where a defen adheres to the "that issues adverted to manner, issue, passing appeal perfunctory dant makes a to an but in a not accom on reference of, "presents analysis panied by developed argumentation, no some are reasoned discussion to, issue,” (internal ... Id. addressed the matter is ended. deemed to have been abandoned.” Island, (1st omitted). adopt reasoning quotations We Cook v. Rhode Cir. 1993). firmly Circuit also that it First Circuit. First stated 673-74, shocking to damage which is emotional Wright, 430 U.S. Ingraham v. (1977). one’s conscience. 1401, 1413-14, L.Ed.2d 711 S.Ct. liberty of this historic

Although the contours presumed to follow 884-85. Juries are J.A. defined, precisely one have not been interest court’s instructions. United Zafiro — right of liberty interest is the aspect States, -, -, 933, of this 113 S.Ct. by (1993). the Fourth security protected Thus, personal 939, 122 it is clear L.Ed.2d 317 overriding function of Id. The trial Amendment. from record and the court’s instruc per “protect jury is the Fourth Amendment that the did not convict defendant tions against unwarrant dignity touch privacy merely sonal of “unwanted sexual 42, n. by Id. at 673 ing.” intrusion the State.” ed (quoting at 1413 n. 42 Schmerber Third, defendant that 1826, 757, 767, 86 S.Ct. California, 384 U.S. show that he acted will government failed to (1966)). 1834, historic 908 This 16 L.Ed.2d Screws, fully. In the Court held that a state actor liberty is violated when interest requires §in reference to willfulness molests, assaults, sexually any sexually or specific purpose intent or “to de proof of a Dist., 15 Taylor Indep. Sch. one. Doe v. right made defi prive person of a federal (en (5th Cir.1994) banc), 443, pet. F.3d or other rule of law.” nite decision (June 1994).3 filed, No. 93-1918 cert. Screws, for at 1036. It 325 U.S. at S.Ct. material whether or not the defendant is not The record in this case shows terms; rather, thinking in constitutional regard to each was sufficient with evidence in willfully when he “act[s] a defendant acts that defen- of conviction to establish count disregard of a open defiance or reckless sexually victims. Since dant assaulted the requirement which has been constitutional constitutionally protected the victims had a specific and definite.” Id. at made sexually by a assaulted state right not to be O’Dell, States v. S.Ct. at 1037. See United actor, deprived of their con- defendant them (6th Cir.1972) (ac n. 10 462 F.2d rights. stitutional cord). Second, argues that defendant proof The in this case established court, upheld by “any are his convictions intentionally engaged wrongful defendant touching ... be [can] unwanted sexual accident, conduct, by mistake or each federal trigger serious eome[] [a] one of his victims. More- time he assaulted Appellant at 27. crime.” Brief of over, assaulted one of each time defendant instructed the that: the district court victims, he acted in defiance and disre- physical abuse in right bodily from such gard Freedom of her constitutional from certain right namely, right to be free to be free from integrity; cludes her Further, sexually physical assaults and motivated there is evidence sexual assault. however, not, battery. prior It is that either coerced sexual the record which shows assaults, grabbing by steps took every unjustified touching or or after the his victims into silence. a violation coerce or intimidate a state official that constitutes evidence, juror a reasonable could rights. The From this person’s constitutional infer that defendant knew his actions as- of a serious and physical abuse must be wrong. According- physical saulting his victims were involves nature that substantial amply force, coercion, injury ly, the evidence bodily we conclude mental change do not accord- examining tions of the Constitution as to whether In the issue they right, ing procedural are we context in which in this case violated a constitutional allegation arising that constitu- to civil cases under U.S.C. also look enforced—whether prosecu- transgressed though rights § criminal is raised even this is a tional have been § prosecution, 242. As the Ninth Circuit criminal tion under 18 U.S.C. in a civil action or in a rights. they has stated: are the same constitutional Reese, (9th 2 F.3d United States v. Cir.1993), looking nothing wrong There is thus -, -U.S. (1994). brought 42 U.S.C. 1983 for civil case under See also United 127 L.Ed.2d guidance constitutional as to the nature of the Bigham, Cir. right alleged States violation has been made whose 1987). charge. protec- the basis of a section 242 willfully in this there was evidence that defen- acted that defendant shows position dant used his intimidate his vic- case. assault, tims into silence. Prior to the first defendant told Archie her father wanted Fourth, argues that go seeking to know how he could about cus- acting that he was government failed to show tody of her child. Defendant was also able to time he assaulted color of law at the under coerce Archie back into his office a second color of law An act is under his victims. “ job time because he knew she needed a ‘[mjisuse power, constitutes a when it custody keep order to ensure that she would and made by virtue of state law possessed child. wrongdoer is possible only because authority of state law.’” clothed with position also used his to effec- Defendant 806, Tarpley, v. 945 F.2d 809 Sandy United States tively demote Sanders after he as- Cir.1991) (5th (quoting United States Clas Sandy Attaway saulted her. He told 1031, 1043, sic, 85 313 U.S. S.Ct. him she should be afraid of because he was a — denied, (1941)), U.S. judge, L.Ed. 1368 cert. and fired her he after he assaulted (1992). -, Patty Mahoney L.Ed.2d 562 her. Defendant also told means under hurt her [also] ‘color’ law that would more than it would “[U]nder Screws, anyone (quoting 325 hurt him if she told about his of law.” Id. assault. ‘pretense’ 1040). Finally, assaulting Bandy, at “Acts of after Fonda defen- at U.S. dant told that he to it that perform their offi her would see she officers who undertake got all of the clients she needed for her they hew to are included whether cial duties it,” but, parenting classes she would come back authority overstep or line of their see him. personal in ambit of their “acts of officers Screws, plainly

pursuits are excluded.” Consequently, government presented “[I]ndividuals at 65 S.Ct. at 1040. U.S. juror sufficient for a rational evidence acting by private and not vir pursuing aims acting color decide that defendant was under authority acting are not under tue of state merely of state law and not for his own they state purely of law because are color personal pursuits when he the vic- assaulted Tarpley, 945 F.2d at 809. officers.” Moreover, contrary to defendant’s as- tims. sertions, government did not establish in this argues Defendant that his actions color of state law based that he acted under personal pursuits. case were subjective impressions merely upon the of his correctly ac- jury concluded that defendant’s government presented consid- victims. taken under color of tions this case were evidence, above, objective as described erable First, took state law. all of the assaults jury’s supported conclusion that which during place in chambers work- defendant’s color of state defendant acted under law. hours, assault, during ing and each there was Furthermore, emphasize that we wish to authority and at least an aura of official much than a defen- his case involves more victims, Sanders, Sandy power. Three of Rather, public dant who is a mere official. Sandy Attaway, Patty Mahoney, were case involves a state who commit- present chambers because defendant’s sexual ted various abhorrent and unlawful they working for him. On the first were chambers, wear- acts in his oftentimes while assaulted, occasion Vivian Archie was she judicial egre- such ing his robe. We consider apply gone to chambers to had gious part of defendant to misconduct on the position. On the second for secretarial court. shocking to the conscience of the be assaulted, occasion Archie was Finally, argues that Vivian continuing authority to determine used his bodily injury. Counts 6 Archie did not suffer custody of her child to coerce her into re- Finally, Bandy charged that defendant’s assaults turning Fonda to his office. suffering bodily present Vivian Archie resulted assaulted while she was de- 242, bodily injury injury. presentation Under 18 U.S.C. chambers to make fendant’s felony, punishable juvenile assault a parenting for of- makes the sexual about her classes years’ imprisonment. up to ten fenders. bodily injury she suffered as argues that the district court both assaults Defendant meaning above, jury beyond on the wrongly instructed the a reasonable doubt. defined not, injury. did howev- bodily er, object jury instruction at trial. B. Thus, will be reviewed the court’s instruction argues the district only plain United States error. See failing grant Cir.1993), court abused its discretion Thomas, — -, pretrial motion to sever the trial of the S.Ct. (1994). felony eight from misde three counts L.Ed.2d charged counts in the indictment. meanor

The district court instructed prejudiced Defendant asserts that he was grant because of the district court’s failure any injury, bodily injury means no matter He if the two severance. Bodily injury in- temporary. how Archie, charges involving Vivian counts burn, pain well as physical cludes separately, had been he would have tried cut, abrasion, bruise, disfigurement, illness Ar acquitted charges been of those impairment bodily function. credibility. testimony chie’s lacked argues that the dis- J.A. 886-87. Defendant trict should have used the definition of pursuant A motion for severance bodily injury from 18 U.S.C. serious 14 is to Federal Rule of Criminal Procedure 247(e)(2). However, § § 242 18 U.S.C. does committed to the sound discretion of the trial bodily injury; only require not serious McCoy, court. United States v. 848 F.2d 743 Moreover, although requires bodily injury. (6th Cir.1988). making A defendant a motion § bodily injury in it is is not defined for severance under Rule 14 has the burden provisions in four other of Title 18 of defined demonstrating strong showing preju provi- In these four States Code. United Goldman, dice. v. 750 F.2d United States sions, bodily injury Congress gave the term (4th Cir.1984). enough “To 1225 show bodily inju- meaning, providing that same severance, prejudice require a defendant burn, cut, abrasion, bruise, ry “a or includes prejudice,’ must establish ‘substantial ‘undue “illness,” disfigurement,” “physical pain,” ” prejudice,’ ‘compelling prejudice.’ or Unit “impairment bodily mem- of a function of (6th Warner, 1189, 1196 v. 971 ed States F.2d ber, “any organ faculty,” or or other mental Cir.1992) (citations omitted). Further, it is injury body, tempo- to the no matter how enough justify not a severance for a defen 831(f)(4), 1365(g)(4), rary.” §§ See 18 U.S.C. joinder dant to that show has made de 1864(d)(2). 1515(a)(5), jury instructions separate or that fense more difficult trials given by court are consistent with the district might him a chance of have offered better injury in bodily the definitions used Title Goldman, acquittal. 750 F.2d at 1225. Further, Myers, in v. 972 United States (11th Cir.1992), F.2d cert. de 1572-73 In this the district court did not —nied, -, 123 U.S. denying abuse its discretion (1993), held L.Ed.2d 445 the Eleventh Circuit motion for severance because defendant jury prosecution in a 242 that instructions substantial, undue, failed to establish either “injury bodily injury as which defined compelling prejudice. Accordingly, body, temporary, ... in- no matter how issue is meritless. clud[ing] physical pain any as well as burn or abrasion,” Accordingly, were not erroneous. C. bodily on district court’s instructions injury plain error. United were not See argues the district — Olano, -, States v. U.S. S.Ct. failing court erred in to dismiss the indict (1993). 1770, 123 L.Ed.2d 508 ground charges con ment on impermissibly tained in the indictment were

Finally, argues defendant that there although each vague. Defendant asserts that was insufficient evidence that Archie suffered alleged bodily injury. However, testimony misdemeanor count the indictment Archie’s defendant, specific act of the counts also at trial was sufficient to establish that after charged mo- 3 of the indictment defendant was allegations that he otherwise referred victims, willfully grabbing adequate not Sanders’ breasts and which was lested the charges against him. buttocks. Defendant this evi- of the notice dence should not have been admitted under if it con An indictment is sufficient 404(b) Federal Rule of Evidence and that he charged and of the offense tains the elements given gov- should have been notice that the charges fairly a defendant of the informs ernment intended to seek admission of this v. he must defend. Allen against which 404(b) testimony. Rule was not (6th States, 867 F.2d Cir. United extrinsic, implicated. “An act is not States, 1989) (citing Handing v. United 404(b) implicated, Rule is not where the evi- 2887, 2907, 87, 117, 41 L.Ed.2d U.S. dence of that act and the evidence (1974)). use a common sense The courts charged inextricably crime are intertwined.” determining whether an indict approach Torres, United States sufficiently of an ment informs defendant curiam). Cir.1982) Here, (per the evi- of the sufficien offense. Id. “The true test grabbed dence that defendant and kissed it could cy of an indictment is whether inextricably Sanders is intertwined with the certain, have been made more definite and grabbed evidence her breasts sufficiently apprises ... but whether it buttocks, all three acts were prepared to of what he must be ongoing pattern in part of an which defen- Debrow, United States meet....” Thus, sexually dant assaulted Sanders. 113, 114, 374, 376, L.Ed. 92 U.S. S.Ct. admitting district court did not err Sand- States, (1953) (quoting v. United Cochran testimony testimony and similar of de- ers’ 628, 630, 286, 290, 15 39 L.Ed. 704 S.Ct. other victims. fendant’s (1895)). prejudiced has not shown that he was case, in the indictment In this each count by alleged manner the lack of notice that the of the was sufficient to inform the defendant testimony. government would use this Furthermore, although charges against him. allegations in the indict- the misdemeanor D. language “and otherwise ment did use argues that the stat molested,” language clearly prej- not this did 242, ute, vagueness. § is void for 18 U.S.C. ability to defend himself at udice defendant’s process principles of due is One of the basic acquit- to obtain an trial because he was able vagueness its that a statute can be void charges in the on four of the eleven tal clearly prohibitions are not defined. Moreover, appeal, in his brief on

indictment. 104, Rockford, Grayned City 408 U.S. v. of acknowledges that in the indict- 2298-99, 108, 2294, 33 L.Ed.2d 92 S.Ct. ment, government put him on notice of at (1972). States, 325 U.S. In Screws v. United specific count of the least one act each 1037, 1031, 91, 104, L.Ed. 1495 65 S.Ct. indictment, government’s case was and the (1945), Supreme held that 18 Court partic- establishing specific to or directed unconstitutionally § 242 U.S.C. Thus, charged ular acts in the indictment. require “an vague if it read to intent were charges clearly had notice of the person right a which has been deprive a of stated, him, and, against defendant was by express terms of specific made either a defense to some of able to mount successful of the United States the Constitution or laws charges. those interpreting by them.” or decisions vagueness challenge to trial, objected rejecting At defense counsel 242, requirement § “a of the Court ruled that of that defendant other- admission evidence instance, deprive person specific intent of victims. For wise molested his by Sanders, right definite decision regard Sandy one of the federal made with witnesses, saves from [§ 242] other rule of law government’s the court admitted unconstitutionality grounds on the charge had of testimony that defendant Sanders’ 103, at 1036.4 vagueness.” Id. at 65 S.Ct. her. In 2 and grabbed her and kissed counts 242 was § was written in 1942. Section interpreted text of 18 as it 4. Screws U.S.C. (9th Cir.1983)). Falsia, 1339, Thus, “that once a due 724 F.2d established Screws of the trial “[T]he defined and made bounds court’s discretion process right has been decisions, right are exceeded the defense is not allowed by court is en when specific by ‘plae[e] § before the from which compassed 242.” United States facts (5th Cir.), bias, prejudice credibility Hayes, cert. or lack of 589 F.2d ” denied, might 62 prosecution witness be inferredf.]’ (1979). Garrett, (quoting L.Ed.2d 60 Id. United States v. (6th Cir.1976)). 23, 25 F.2d process right In the due victims, bodily right integrity which their Here, the decision to district court’s violated, has been defined and concerning limit cross-examination of Archie specific made court decisions. See Jamie prior her sexual conduct was not an abuse of Shaw, 772 F.2d son v. Cir discretion. circumstances which “[AJbsent Boardman, 1985); Canedy v. 16 F.3d value, probative enhance its evidence of a (7th Cir.1994). Accordingly, right rape unchastity, sexual victim’s [or assault] by defendant in this case the victims violated testimony concerning in the form whether Therefore, encompassed by is defen general reputation her or direct or cross- argument that the statute is unconsti dant’s testimony concerning specific examination tutionally vague is meritless. defendant, persons than acts other ordinarily insufficiently probative is either of E. general credibility her as a witness or of her the district court consent to intercourse with the defendant on by limiting abused its discretion his counsel’s particular charged outweigh occasion government’s cross-examination of one of the highly prejudicial its effect.” United States witnesses, Specifically, Vivian Archie. defen- (8th Cir.1978) Kasto, 271-72 that the district dant asserts court abused its (footnotes omitted), 440 U.S. (1) discretion when it limited cross-examina- (1979). 59 L.Ed.2d 486 concerning prior tion of Archie her sexual addition, In Federal Rule of Evidence (2) conduct and it limited cross-examination 608(b) part: states in relevant concerning prior drug of Archie use. Specific instances of of a the conduct wit- Beyond the essentials of cross- ness, purpose attacking sup- for the of examination, court in the district the exercise porting credibility, the witness’ other than right limit of its discretion can the to cross- 609, provided conviction of crime as in rule Parke, 163, Dorsey examination. v. 872 F.2d may proved by not be extrinsic evidence. (6th Cir.), denied, 831, cert. 493 110 U.S. They may, ... in the discretion of the (1989). 103, S.Ct. 107 L.Ed.2d 67 An abuse court, probative of truthfulness or un- of discretion is found where the trial court truthfulness, inquired be into on cross- has interfered with defendant’s constitu (1) concerning examination of the witness right tional to cross-examination. Id. How the witness’ character for truthfulness or ever, where the trial court curtails the defen untruthfulness government’s dant’s cross-examination of the witness, ruling “star” its must be more care Brown,

fully scrutinized. United States v. 412(b) Furthermore, Fed.R.Evid. also limits (6th Cir.1991). 1191, 946 F.2d 1195-96 admissibility concerning the of evidence the past sexual behavior of victim a criminal If the cross-examination “reveals case in which the defendant accused of a is appraise sufficient information to the wit sexual offense. veracity,” right nesses’ the Sixth Amendment Thus, testimony Dorsey, confront is which the defense witnesses satisfied. (quoting sought during 872 F.2d at 167 v. to elicit cross-examination of United States 1968; however, Cir.), denied, 847, (5th amended in the 1968 amend 819-20 cert. 444 U.S. 93, (1979). ments did not render the statute unconstitution S.Ct. 62 L.Ed.2d 60 811, ally vague. Hayes, United States v. 589 F.2d 351, 1507, Maxwell, 333, an simply have been would Archie Vivian (1966). A new trial is Accordingly, 16 L.Ed.2d 600 character. Archie’s attack on jury merely has in.limiting required Ar- not not err court did the district exposed to evidence. concerning past sexual been material testimony chie’s Rather, only required a new trial is when conduct. possibility exists that the material reasonable Further, court did not the district jury’s United States affected the verdict. limiting cross-exami its discretion abuse (7th Weisman, Cir.), 736 F.2d cert. drug prior concerning her Archie of nation denied, 983, 105 S.Ct. 469 U.S. only drugs is rele use of “A witness’ use. Hill, (1984); United States L.Ed.2d 324 per ability of the witness to the vant as (6th Cir.) curiam), (per cert. testify lucid underlying events ceive the denied, 459 U.S. States, 822 v. United Jarrett ly at trial.” (1982). a determination L.Ed.2d 638 Such Cir.1987). case, (7th In this 1438, 1445 F.2d particular facts of depends upon the each testimony Archie from elicit defense did being the degree the critical factor with heavily with involved admitting she was prejudicial pervasiveness of influence by the assaults drugs both before after jury’s exposure to resulting from the possibly testified Archie defendant. Weisman, 736 F.2d the extraneous material." not under drugs and was did not use she a trial court’s at 424. This court reviews of either of the drugs at the time influence prejudice for an abuse determination Moreover, defendant. assaults two Furthermore, Id. consider “[i]n discretion. clearly perceive was able Archie extra-judicial ... material ing the effect of the assaults and underlying both of events large Court has a on the the District Finally, at trial. testify lucidly about them ruling prejudice the issue of on discretion limitation district court’s despite the jurors reading by of news resulting from the concern Archie of Vivian cross-examination concerning trial.” United States articles use, jury was not drug prior ing her Cir.), F.2d Dyke, 605 v. Van was a model impression that she under the 994, 100 S.Ct. 444 U.S. that she only Archie admit Not did citizen. (1979). Supreme has The Court L.Ed.2d 425 addict, the defense drug but long-term awas who testified as granted witnesses put on seven the wide stressed discretion Ac conducting untruthfulness. dire in the reputation for voir to her trial court limitation of court’s and in other areas cordingly, pretrial publicity the district area of prior concerning juror Archie’s might tend to show inquiry that cross-examination pretrial Particularly respect an abuse of discretion. drug use was not bias. primary reliance on publicity, we think good court makes judgment of trial F. sits in the judge of that court sense. argues that he was de Defendant to publicity is said have where the locale jury. or fair right impartial an his nied effect, brings to his evaluation had its and trial, court parties and the the Prior perception the own any such claim his newspaper a local copy that a learned that news stories and extent of depth the case had been containing article an about juror. a might influence argues that jury Defendant in the room. left 415, 427, 111 newspaper Virginia, 500 U.S. presence of the v. a of the Mu’Min as result (1991). 1906, 493 room, have ex 114 L.Ed.2d jury 1899, the court should in the S.Ct. permitted the selec jury panel the cused permitted a court the district In this jury panel. Defendant a new tion of preju- not find jurors and did of the voir dire permitted the court should have that asserts delay trial and obtain the dice sufficient jury panel. of the voir dire an individual argues Although defendant jury panel. new should have had the district court jury’s [must] be verdict “[T]he jurors, defendant court, voir sequestered dire open on evidence received based resulting any prejudice not identified Sheppard v. has outside sources.” not from —Olano, Accordingly, from the district court’s action. -, United v. States 1770, (1993). the district court did not abuse its S.Ct. 123 L.Ed.2d discretion.

Nevertheless, regardless of which G. used, standard is the district court did not denying err in defendant’s for motion a mis argues the district court trial. Defendant government claims that the denying abused its discretion in his motion present any did not supporting evidence alleged for a mistrial based on factual mis by prosecutor some of the remarks made the government’s opening statements the during opening his statement. He asserts deny “In statement. order to a defendant a government any proof the failed to offer trial, prosecutorial fair misconduct and im supporting prosecutor’s the statement proper argument pronounced must be ‘so jury would hear that defendant mastur persistent permeate[d] that it the entire at bated front of some of the victims. How mosphere of the trial.’” United States v. ever, Ruby Sipes testified that while she was Castro, (8th Cir.1990) 908 F.2d (quot chambers, present in defendant’s “he had Vance, ing United States v. 871 F.2d penis both hands on his and he was mastur (6th Cir.), 493 U.S. 110 bating.” J.A. 714. Defendant also chal (1989)). S.Ct. 107 L.Ed.2d 313 “Inap lenges prosecutor’s statement that if de propriate prosecutor remarks do not fendant did not like the women who worked justify alone reversal of a criminal conviction him, they he would terminate them and in an proceeding, long otherwise fair as as would Sandy lose their livelihood. jury’s ability judge fairly the evidence Attaway testified that defendant fired her (citing remains intact.” Id. United States “things just working weren’t out be 1, 11-12, Young, 470 U.S. us.” J.A. 435. tween (1985)). L.Ed.2d “In order to Defendant further prose- that the prosecutor’s decide remarks denied the description cutor’s of defendant’s conversa- trial, reviewing may defendant a fair court tion with Vivian concerning Archie’s father consider, along factors, poten with other custody her father’s desire to obtain of Ar- tial of prejudice the remarks to the defen baby unsupported by chie’s the evidence. dant or confuse strength and the However, Archie and defendant testified proof against the (citing defendant.” Id. An about this conversation. Defendant further gel Overberg, 682 F.2d Cir. challenges prosecutor’s description of 1982)). Furthermore, reviewing pros Bandy’s Fonda parenting program. Howev- ecutor’s argument, remarks and this court er, Bandy only parent- testified about her must Supreme remember the Court’s state ing program, she also testified that due to arguments ment that in prosecutor “the position juvenile ” could ‘strike hard blows but not foul ones.’ judge, only person defendant was the who Steinkoetter, United States v. parenting could make her program a success. (6th Cir.1980) (quoting Berger v. United challenges Defendant also prose States, 78, 88, 629, 633, 295 U.S. only cutor’s statement that judge he was the (1935)). L.Ed. 1314 Dyer that an County go individual could case, however, defense coun divorce, In support, for a custody child or child object sel prosecutor’s did not opening case.5 correctly points out that day statement until the after the statement witnesses testified that the circuit was Accordingly, made. this court’s review could Nevertheless, also hear such cases. plain error, is limited to see United v. States defendant although testified that he and the Levy, 1026, (6th 904 F.2d 1029-1030 Cir. jurisdiction circuit had concurrent over 1990), denied, 1091, cert. 498 U.S. 111 S.Ct. divorce cases proceedings, and related he 974, (1991), 112 using L.Ed.2d 1060 the stan approximately heard percent 80 to 90 of the by dard Supreme enunciated the Court in divorce cases and that if he heard a divorce immediately object 5. Defendant did prosecutor. to this state- ment the

659 in a witness credi end, personal belief a dicating through to it the follow he would case States, F.2d support bility.” Taylor v. United custody and child 985 including child curiam) Cir.1993) (6th (citing testimony that 844, (per shows well. This as matters 1277, 1283 were remarks though prosecutor’s Causey, the 834 F.2d v. United States even inaccurate, proposition denied, 1034, the broad technically (6th Cir.1987), 486 U.S. cert. trying (1988)). to make was was prosecutor 2019, the that 100 L.Ed.2d 606 purposes, practical all correct; namely, for argument, prosecutor the told During closing a di- likely preside over was defendant jury: the related matters proceeding vorce credibility a evalua- you to make And need County. Dyer that. It tion, question about there is no dur- remarks prosecutor’s Accordingly, the [defen- of whether really question a [is] deprive not did opening statement ing his telling or these women is the truth dant] Therefore, the dis- a fair trial. of defendant know, you And that telling the truth. are denying defendant’s not court did err trict why you get That is why you are here. is upon prosecu- the based for a mistrial motion they when are at the witnesses to look opening statements. tor’s who you have to decide testifying, because You look at their telling the truth. is H. demeanor, expressions, look at facial their the prosecu your common body language and use their during clos comments improper made tor say, it they did listen to sense. You what de comments that these argument and ing you they telling the Are sense. make Defense counsel trial. him of a fair prived you And they making up. it are truth or closing prosecutor’s object the not did [defendant] compare the demeanor can argument. time of the at the argument way the women with the on that stand phraseolo However, object to certain did he stand. on the looked day the the prosecutor after by the gy used of im- assertion Defendant’s J.A. 850-51. here, Where, a argument. prosecutor’s is merit- vouching by prosecutor the proper contemporaneous make a fails to defendant less. comments, a the objection prosecutor’s finding plain absent will stand conviction Second, asserts that Cummins, F.2d v. States error. United challenged his improperly prosecutor (6th Cir.1992); at Levy, 904 F.2d 223, 227 took credibility. prosecutorial reviewing alleged In that the expressly testified stand and witness error, necessary plain “it is misconduct witnesses testimony government was not within be measured the error reasonable latitude prosecutor A has false. argu [prosecutor’s] confines of narrow closing arguments, and in fashioning his United entire record.” against the ment but conflicting essentially sto involving two ease Ebens, F.2d v. States infer, argue, ries, is reasonable Cir.1986). Rule of Federal Criminal Under v. States lying. United side is that one 52(b), should appeals court of Procedure (9th Cir.1991); Molina, error, “seriously plain error correct Estelle, 704 F.2d Whittington v. see rep fairness, public integrity or affeet[s] (5th Cir.), 464 U.S. United judicial proceedings.” utation (1983). In 983, 104 78 L.Ed.2d S.Ct. — -, -, Olano, U.S. States comments prosecutor’s (1993) 123 L.Ed.2d 508 S.Ct. testimony in the the conflicts about Atkinson, United States (quoting ver they believe should whether 391, 392, 80 L.Ed. simply fair version the victims’ sion or (1936)). trial. presented at on the evidence comment asserts first Third, asserts credi for the improperly vouched prosecutor in evidence argued facts government “Im government’s witnesses. bility that defendant prosecutor stated the when jury could vouching when occurs proper county in the favor every political in- “called was prosecutor reasonably that believe get people say to come in here things courtroom with some of the victims and also about [the victims].” J.A. 865. This state- met with and comforted some of the victims by prosecutor ment the was a However, reference to testimony. after their Fitzgerald many the fact of the 23 that defense witness- testily did not as a witness at the trial.6 credibility es were called in to attack the Fitzgerald Since was not a witness at the government’s Indeed, the witnesses. the jury, trial presence before the in the prosecutor’s jury next statements to the courtroom improper neither was nor did it anybody were “does somebody not have that deprive defendant of a fair trial. doesn’t like anybody them? Does have somebody that say, wouldn’t come in and Defendant further asserts that the ” ‘You’re liar.’ J.A. 865-66. government subpoenaed Fleming Colleen witness, be a but when she told the govern Finally, argues the ment that Vivian Archie had told her that she prosecutor’s jury statement that if it (Archie) defendant, had never had sex with believed that what defendant was not did she was not called as a witness and the law, against the the “go should back government (Fleming) told her speak not to there, guilty’ mark ‘not on that form [verdict] anyone. Defendant gov asserts that the times, ten and let [defendant] start court ernment improperly withheld this informa week,” next improper. was J.A. 864. How However, tion from the defense. ever, nothing improper there is about this or acknowledges that he gov learned that the the above statements. subpoenaed ernment and, Fleming had fact, presented the I. defense Fleming as a witness at Fleming the trial. testified that argues Defendant also govern the Archie did tell her that she had never had engaged persistent ment misconduct Therefore, sex with defendant. throughout the process. entire trial As not prejudiced by was not alleged failure to previously, prosecutorial ed misconduct war disclose. if, rants of a only reversal conviction based upon whole, a review of the record as a asserts that FBI an “permeates atmosphere the entire of the tri agent case, Agent involved Castle- al.” United Dandy, States v. berry, improperly invaded — room witness (6th Cir.1993), prior to when trial he removed a box -, (1994). 127 L.Ed.2d 538 Kleenex tissues from the witness room. However, defendant any per has not shown Agent Castleberry apparently entered the government sistent misconduct of the which witness to obtain room the box of Kleenex permeated atmosphere of his trial. tissues for one the witnesses had who govern upset. become When Castleberry entered ment improperly named his original two at room, witness, Lanier, a defense Joan torneys possible as prevent witnesses to was in Castleberry the room. either said representing them from him. “Hi” or “Hello” to Mrs. Lanier as picked he rejected district argument as base up the tissue box. Mrs. Lanier claimed that less, and pointed defendant has no facts by she was Castleberry’s intimidated actions which upon would cast doubt the district well as the fact that thought she Further, court’s decision. review might Kleenex box have listening contained a record ably shows that defendant repre was device. In this there is no evidence sented at trial. that the Kleenex box ever contained a listen Defendant next ing tape contends that recording Dr. device. there Fitzgerald, Louise expert an psychologist, is no Agent evidence that Castleberry’s mo improperly permitted mentary remain intrusion into the witness room so however, appears, It Fitzgerald may have a mistrial. hearing testified at on defendant’s motion for deprive gov Defendant next asserts the Lanier as to defen- Mrs. intimidated outrageous conduct ernment’s was of fair trial. dant threatened, government harassed, the and potential attempt in an intimidated witnesses gov that the asserts Defendant testimony. Along to affect their with his improperly it called him when ernment acted motion to dismiss the indictment on the testify grand jury which the was before conduct, ground outrageous government of though had investigating the even he from defendant submitted several affidavits that he would exercise previously indicated potential reviewing witnesses. After the affi privilege against self- his Fifth Amendment davits, they the district court found did grand jury. the if called before incrimination outrageous of support defendant’s claim appeared grand the Defendant twice before Moreover, governmental despite conduct. 5, 1992, May jury on March and government unsupported his claim that the rights to advised of his invoke Defendant was witnesses, attempted potential to coerce de against self- privilege Fifth Amendment the occasions, present fendant was able numerous wit and in incrimination on both he acquittal trial and to four nesses at obtain on on At privilege both occasions. voked the Thus, charges against him. 20, 1992, the defen hearing May on the second defen outrageous governmental dant’s claim of con subpoena for asked about a dant was audio duct was meritless. grand jury had tapes and which the video Previously, the defendant earlier issued. Finally, defendant asserts that the grand to the tapes had over some turned government unlawfully intercepted telephone thought one jury and had indicated that he using telephone. calls made cordless he his tape grand might more exist. At this second Although government the claimed that it act grand the jury appearance, he testified that lawfully intercepting ed the cordless tele jury tapes the which existed. Defen had all calls, phone agreed it nevertheless not to use invoked Fifth Amendment dant then recordings telephone cordless tape any privilege give refused to further Thus, at tri conversations trial. testimony. government’s prejudiced by al was not telephone his interception of cordless calls. “subpoenaing The mere jury grand per is not se violation before the ground rights or a constitutional J. United dismissal of the indictment.” States argues that the district Defendant Bell, Cir.1965), F.2d improper. were jury court’s instructions 383 U.S. that the dis Specifically, defendant asserts (1966). Moreover, L.Ed.2d 210 jury on improperly trict instructed the Fifth

was that he could assert his aware in of consent. The district court issue during grand jury privilege Amendment jury structed Furthermore, he proceedings, and did so. unlawful, to be physical [f]or the contact that he had turned the defendant’s statement not due have been unauthorized and must subpoenaed by evidence over all the voluntary consent of the to the free nor grand jury inculpatory neither excul was you to alleged victim. It is for determine patory. Accordingly, is meritless. this issue any such occurred rea- whether conduct voluntary consent. son of uncoerced and gov also asserts that the deliberations, During jury testimony of Lisa at J.A. 885. its ernment used the Couch the. asking role sent to the what though government knew that a note trial even implied played in the defendant’s testimony highly suspect. consent was Defen rights. willfully depriving the victims their surreptitiously tape-recorded dant a con had then further instruc- had with asked versation he Couch. complete is a tape. tion effect that consent testimony Fur heard Couch’s assault, ther, consent whether the acquitted of the count defense jury. implied, given express is be involving Couch. Lisa 662 give not finding

The district court did this instruc- I make that without direct reliance tion, asserts in jury and defendant this on the verdict of this the case and my error. on of based evaluation the evidence. appeal ‘“The on for court’s standard a J.A. 947-48. charge charge, jury is whether the § provides: U.S.S.G. 3C1.1 whole, fairly adequately taken a sub as willfully If the defendant obstructed or applicable to mits the issues and law the or impeded, attempted obstruct im- to or ” jury.’ Buckley, v. F.2d United States 934 justice pede, the of during administration 1991) (6th (quoting 87 Cir. United States investigation, prosecution, the or sentenc- (6th Martin, F.2d 1361 Cir. 740 offense, ing the of instant increase the 1984)). by level 2 offense levels. case, In district in this the court’s — In Dunnigan, United States v. U.S. adequately structions submitted the issues -,-, 1111, 1116, 122 L.Ed.2d Moreover, jury. and law to instruc the the (1993), Supreme the Court stated that a correct, tions on of the issue consent were testifying “witness under oath or affirmation” declining and the did not err in district court perjury gives commits “if [he] false testimo give to requested by the the de instruction ny concerning a material matter with the given fendant. “the trial is provide testimony, willful intent to false rath tailoring [jury] substantial latitude in confusion, a er than as result of mistake or structions,” party, including and “neither a faulty memory.” Supreme The Court fur defendant, may any par criminal upon insist sentencing, ther stated that at if a defendant Saussy, ticular language.” United States v. objects to a sentence perju enhancement for (6th Cir.1986) (quoting F.2d ry § upon under U.S.S.G. based 3C1.1 his James, United States v. 226-27 testimony, trial “a district court must review (9th Cir.1978)), 907, 107 cert. 480 U.S. independent findings evidence make (1987). S.Ct. 94 L.Ed.2d 522 necessary to impediment establish a willful to justice, or of an attempt obstruction or to do K. same, perjury under the definition we argues that district at-, out.” have set Id. at S.Ct. enhancing by court erred in level offense The in making Court further stated that its justice two levels for obstruction of under findings preferable “it is for a district court Sentencing United States Guideline alleged each perju address element of the (“U.S.S.G.”) § 3C1.1. The district court ry separate finding. and clear justice found that the of obstruction enhance district court’s determination enhance applicable ment was because defendant had sufficient, required however, ment is is if ... at perjury Specifically, committed trial. finding the court makes a anof obstruction district court stated: justice impediment encompasses or all I required am a finding make with predicates of the factual a finding respect to whether defendant commit- perjury.” Id. perjury ted relative to a material fact while testifying in this will- under oath case with A district court retains discretion ful provide intent testimony. deciding false Giv- whether a defendant’s actions testimony en the defendant’s at this trial an justice constitute obstruction of under the testimony guidelines, that was to the con- and this court reviews the district trary, provided various victims court’s decision under an abuse discretion respect Medina, on those counts United standard. States guilty, Cir.1993), denied,- which there verdict of I can- was a F.2d -, not any finding by preponderance make S.Ct. 127 L.Ed.2d 371 (1994). deciding evidence than that defen- other In whether dant oath falsely testimony testified under with the at a per criminal trial constituted testimony willful provide jury, intent to false district may rely on the matters, but, rather, to material jury’s finding guilt, issues and I find. so must make 5E1.2(a) requires courts U.S.S.G. Mathews v. United own. findings of its (6th Cir.1993). cases, except impose How fines all where States, F.3d finding that he is makes a unable ever, “court establishes a district once pay untruthfully likely as to to become able to pay and is not ‘testified oath,’ determining In the amount of the the district fine. fact while under material a consider, fine, among is to other Sentenc the court under the no discretion [has] court presented § as to the things, “any United evidence applying in 3C1.1.” ing Guidelines (6th 151, (including ability pay the fine 153 to Morgan, 986 F.2d defendant’s v. States time) curiam) Cir.1993) pay period a of ability the over (quoting States to (per United (6th Cir.), capacity financial Alvarez, light earning his 303 of 927 F.2d v. 5E1.2(d)(2). § A de resources.” U.S.S.G. 500 U.S. (1991)). showing the burden of that he is fendant has L.Ed.2d pay imposed to the fines the dis unable the dis argues first that Defendant Vincent, trict court. United States findings to proper make failed to trict court (6th Cir.1994). F.3d In enhancement. support the obstruction report Although presentence noted the found that defen district court this the negative net worth of that defendant had a falsely with the under oath dant testified $83,835, report also noted presentence the testimony toas provide to false intent willful from that conviction and removal Further, the district material matters. losing in his his not result the bench would conclusion was that its stated explicitly also $1,500 approximately to pension of state of the evidence upon own evaluation its based $1,800 presentence per the month. fact the jury’s the verdicts. Given and not that within investigation report also noted the al that none of testified that defendant conviction, year prior to his occurred, district leged sexual assaults properties to a number of transferred justice was finding of of obstruction court’s persons. other tes Defendant’s an of discretion. not abuse oc alleged timony that none of assaults findings concerning court’s A district matter, clearly a material curred concerned ability pay to are factual find a defendant’s testimony utterly contradicted and since subject clearly a ings erroneous which are clearly made testimony, it was the victims’ Hickey, States v. standard of review. United testimony. provide false with the intent Cir.1990). (6th Based 917 F.2d Thus, finding of obstruc court’s the district record, fact that upon the and the factual justice “encompass[ed] all the of tion likely receiving a state substantial will be finding Dunni- perjury.” a of predicates for incarceration, during his pension even — -, at 1117. at gan, finding that defendant could district court’s Therefore, finding of ob- the district court’s $25,000 clearly not fine is erroneous. pay Dunnigan. comports justice struction of argues that the addi Second, defendant asserts $1,492 per imposed for month tional fine of believing it lacked court erred district paid is to imprisonment, which be the cost of apply the not to enhancement. the discretion receiving pension, is is long as so However, made the the district court once by the it is not authorized unlawful com finding the defendant had required Although Sentencing Reform Act. U.S.S.G. apply the required perjury, mitted was 5E1.2(i) imposition § provides § U.S.S.G. 3C1.1. under enhancement incarceration, defendant for the costs of fine holding urges to follow the this court L. Spiropou United States Third Circuit Cir.1992). (3d los, Spiropou In the dis 976 F.2d first los, $25,- concluded that Circuit Third imposing a fine trict court erred not authorize Sentencing Reform Act does district court erred asserts that the 000. He 5E1.2(i) § for the pursuant have fine U.S.S.G. he imposing the fine because did Id. at imprisonment. cost pay it. the funds 2A3.1, Abuse, § defendant did not make U.S.S.G. Criminal Sexual court, and, thus, argument to the district determine his offense level. Defendant as- need not resolve the issue. this court See serts that U.S.S.G. 2A3.1 is intended to Mondello, United States v. violence, apply to a crime of and his assaults Cir.1991) (Ninth Circuit refused to Archie, of Vivian counts 6 and were not provi consider the issue of whether “the fine crimes of violence. contrary sions are to statu Guidelines court reviews “a district court’s This tory authority,” argument where the findings factual applica which underlie the appeal); first time on see also raised /or guideline provision tion aof for clear error.” Carrozza, (1st United States v. F.3d Garner, 172, United v. States F.2d Cir.1993) (where did not raise is (6th Cir.1991). However, whether the facts concerning imprisonment sue his cost of fine by determined the district court warrant the court, First

before the district Circuit would application particular guideline provision of a only plain consider the issue error. Be question is a of law which is reviewed de conflicting cause the issue had resulted in by novo this court. Id. circuits, decisions in other the district court’s imprisonment assessment of a cost of fine is In this the district court found that plain meaning error within the of Fed. § underlying U.S.C. was the offense — 52(b).), denied, U.S.-, R.Crim.P. cert.. closely which most resembled the offense (1994). 1644, 114 S.Ct. 128 L.Ed.2d 365 in conduct counts 6 and 7.7 18 U.S.C. Further, if we were to even consider the 2241(a)(1) § aggravated abuse, defines sexual issue, Spiro- the Third Circuit’s decision in part, in “knowingly causing] relevant as an- poulos persuasive dispositive. nor is neither person engage other by a sexual act ... rejected expressly The Seventh Circuit the using against person.” force that other position in Third Circuit’s United States v. term “sexual act” as defined in 18 U.S.C. (7th Turner, Cir.), 998 F.2d 534 cert. de 2245(2)(B) § U.S.S.G.App. includes oral sex. - nied, -, 639, U.S. 114 S.Ct. 126 A., statutory index, states that U.S.S.G. L,Ed.2d (1993). Moreover, two other § applies 2A3.1 to violations of 18 U.S.C. already contrary circuits had reached a deci § 2241. prior Spiropoulos. sion to the decision in hand, statutory On the other index Hagmann, See United States v. 950 F.2d 175 § applies states that U.S.S.G. 2A3.4 to viola- — (5th Cir.1991), -, U.S. § § tions of 18 U.S.C. 2244. 18 U.S.C. 108, 121 (1992); L.Ed.2d 66 United defines abusive sexual contact in relevant Doyan, States Cir. part “knowingly engaging] as causing] in or 1990). Fifth, Accordingly, agree with we sexual contact with per- or another Seventh, and Tenth Circuits and hold that son_” The term “sexual contact” is de- the district court did not err in either of the 2245(3) § fined 18 U.S.C. “meaning] imposed. fines it touching, the intentional directly either through clothing, anus, genitalia, of the M. breast, groin, thigh, inner any or buttocks of the district person abuse, humiliate, with an intent applied wrong guideline in deter harass, degrade, gratify or arouse or mining felony his offense level for the two any sexual person.” desire of counts, counts 6 and which involved Vivian respect Archie. Defendant upon testimony asserts Based of Vivian Ar- chie, upon convicted, counts 6 and the district court should which defendant was 2A3.4, § have used U.S.S.G. Abusive Sexual forcing defendant’s actions twice Archie to Contact, used, guideline rather than perform oral aggra- sex on him constituted required 7. plus The district court was applicable make this or 6 the offense level 2H1.4, underlying § determination because U.S.S.G. offense. Since the offense level for guideline provision applicable underlying to violations of 18 offense for counts 6 and 7 as conviction, § § U.S.C. the offense of stated determined from U.S.S.G. 2A3.1 was greater that a defendant's base level is the resulted in base offense level of 33. only analyses appropriate in the rare are under 18 U.S.C. abuse sexual vated 2241(a)(1) comparison in which a threshold contact case not abusive sexual § 2244(a)(1). imposed committed and the sentence Accordingly, crime § under 18 U.S.C. gross disproportion- determining leads to an inference court did not err the district ality.” at 2707. Id. at S.Ct. applied to counts 6 and 2A8.1 that U.S.S.G. gross dispropor- There is no inference of tionality between defendant’s sentence and N. crimes defendant committed. Defendant argues that his sen of seven out of the eleven was-' convicted Eighth Amendment be violated the tence in the indictment. These seven counts years, is imposed, 25 the total sentence cause on wom- counts involved sexual assaults five committed. to the crimes disproportionate en, felony involving two of which counts were ... criminal principle a matter of “[A]s forcing physically a woman proportionate to the crime must be sentence occasions, perform oral sex on him on two has been convicted.” the defendant for which bodily injury resulting in to her. Helm, Solem crimes, committing defendant misused these (1983). However, 3001, 3009, L.Ed.2d 637 to, judge gain access power his as a state grant substan “[Reviewing ... should courts victims, from, who were as well as silence authority that to the broad deference tial juvenile pro- in a employees, a worker necessarily possess in determin legislatures Thus, gram, litigants or him. defen- before punishments for types and limits of ing the years claim that his sentence of 25 is dant’s crimes, that trial as well as to the discretion he grossly disproportionate to the crime so sentencing in convicted crimi possess courts Eighth suggest as to an Amend- committed Moreover, the context “[o]utside Id. nals.” violation has no merit. ment challenges punishment, capital successful particular proportionality of sentences to the 289-90, exceedingly rare.” Id. at O. [will be] Estelle, (quoting at 3009 Rummel 103 S.Ct. Finally, argues that 1133, 1138, 263, 272, 445 U.S. denying in his motion for court erred district (1980)). L.Ed.2d 382 departure under U.S.S.G. a downward Michigan, 501 U.S. In Harmelin v. § that the district 5K2.0. He asserts 2680, 2702, 115 L.Ed.2d 836 this downward because departed have should (1991), recognized that Supreme Court case, type but an is not a “heartland” “encompasses a nar Eighth Amendment Appellant at 48.9 “atypical Brief of ease.” plurali proportionality principle.”8 row appealable. “This Court Eighth This issue is not that “the ty in Harmelin concluded range sentencing is that when the require propor has held does not strict Amendment computed, the district court is properly Rath tionality crime and sentence. between depart, and the er, aware its discretion only sentences that are it forbids extreme imposed in violation of law or is not crime.” Id. sentence disproportionate’ to the ‘grossly Solem, application incorrect result of an (quoting 463 as the at 2705 at S.Ct. 3016). Guidelines, depart a failure to is Sentencing 303, 103 at at S.Ct. appeal.” cognizable basis for United not a plurality con Consequently, the Harmelin Cir.1993). Isom, F.2d inter-jurisdictional States that “intra- and cluded of 41 and his criminal total offense level Hopper, dant’s 8. In United States v. I, (6th Cir.1991), plu- category history category, that the restdt in a sentenc- this court concluded binding opinion on the rality in Harmelin was range months’ incar- ing guideline of 324 to 405 Circuit. Sixth Nevertheless, district court sen- ceration. range only guideline defendant below the tenced sentenced defen- the district court In this maximum, statutory not because it because of the statutory equal maxi- a sentence dant to depar- warranting any a downward factors found conviction, years offenses of mum for the ture. actually sentence is months. this range. sentencing guideline Defen- less than the touching, exposure, fondling III. and the like felony doubtless made the defense of these stated, the district court is For the reasons counts more difficult. respects. AFFIRMED in all My heightened by concern is what I be- WELLFORD, Judge, Circuit Senior improper lieve was an curtailment of cross- concurring. regarding examination of Vivian Archie her had, fact, drug Judge use. If she been under the thorough I concur Milburn’s anal- ysis separately drugs I influence of at of this case. write to em- or about the time of the phasize aspects I several of this ease that are encounters set out Counts 6 and troubling panel Despite may upon this member. believe it well have reflected actions, Judge credibility. fact that Lanier’s as deter- jury, reprehensible, espe- mined were Although may pros- this be a first criminal offensive, cially part and inexcusable on the type, given by ecution of this the instructions judge, of a I have still examined this record it district made clear that “an special care because is an unusual unjustified touching” “phys- had to constitute proceeding. criminal We have found no oth- ical abuse ... of a serious and substantial reported prosecutions involving er force, involving “physical nature” mental judge, state and we have found no other coercion, bodily injury damage or emotional involving charges criminal cases of molesta- shocking which is to one’s conscience” to tion, and, touching, general, unconsensual out a make constitutional violation. The dis- typical sexual harassment of female adults great trict court made it clear that a deal Yet, § 1983 or Title VII civil cases. no simple touching more than unwanted sexual trial, brought, victim had at the time of proven must be to convict a state actor under defendant, charge against civil claim or § 242. fear, embarrassment, perhaps or § Most cases under have involved cus- understandable reluctance. officials, prison guards todial and situations — My first concern relates to defendant’s re- security officers, police guards, border etc. quest felony charges for severance of the two custody present element is not here and involving Vivian Archie from the other mis- this absence has made this an unusual case. overwhelming demeanor offenses.1 The im- Finally, emphasize I that there is a vast pact upon Judge of this case former Lanier § prosecution difference between a 1983 civil felony were these two offenses in Counts 6 of a defendant for unwanted sexual advances Combining and the numerous much other prosecution or harassment and a criminal (based less serious penalty offenses on the merely upon under based the dif- involved) (Counts with these two offenses proof. ferent burden of Willful and inten- 7), view, my undoubtedly impacted conduct, tional criminal which amounts to unfavorably adversely upon conscience, that which shocks the is far dif- government Lanier. The had to know ferent from that conduct which the civil that, majori- advance of the indictment as the plaintiff charging §a 1983 violation must ty puts government it and the admitted in its demonstrate to make out a case. See United brief, witness, Archie, prosecuting the chief Bigham, States being was far from a “model citizen.” Archie Cir.1987). drug problems concededly had admitted granted sexual favors to the doctor friend of reservations, Despite these I concur in the (Evidence defendant. general reputa- of her affirmance under all the circumstances set properly precluded tion was except at trial Judge comprehensive opin- out in Milburn’s testimony from a number of witnesses ion. liar.) who deemed her a I consider it to have question been a close as to whether there

should have been a severance of Counts

and 7. improper Evidence of and unlawful guilty felony involving

1. The found defendant not Count 10 offense Lisa Couch.

Case Details

Case Name: United States v. David W. Lanier

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 31, 1994

Citation: 33 F.3d 639

Docket Number: 93-5608

Court Abbreviation: 6th Cir.