United States v. Shawn Shaw
891 F.3d 441
3rd Cir.
2018
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UNITED STATES OF AMERICA v. SHAWN D. SHAW, Appellant

No. 16-2860

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

May 30, 2018

PRECEDENTIAL
Argued: September 26, 2017

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

Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-13-cr-00660-001) District Judge: Honorable Esther Salas

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

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] couldnt 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 Shaws 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 womens unit slightly before the sexual assault. The surveillance videos refuted Shaws 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 prosecutors 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 womens unit on his break at like two thirty, two forty for about twenty minutes and returned maybe something about . . . three oclock. 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 Shaws claims related to his conviction for deprivation of civil rights by aggravated sexual abuse, 18 U.S.C. § 242. Shaw challenges (1) the District Courts jury instructions and (2) the sufficiency of the evidence. We will describe the statute and then address each claim in turn.

A

1

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. . 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. ; see also . The statute is unusual for its application in so many varied circumstances. . Among these, [t]here are a multitude of cases in which prison administrators have been prosecuted under [Section 242]. .

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. 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).9

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 ; . 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 ; ; ; . 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).

2

Aggravated sexual abuse under Section 2241(a) prohibits forced sexual acts against another person. (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 fear that any person will be subjected to death, serious bodily injury, or kidnapping; or attempts to do so. 18 U.S.C. § 2241(a).10

We read the aggravated sexual abuse statute, Section 2241(a), in contrast to the statute defining the lesser crime of (non-aggravated) sexual abuse, 18 U.S.C. § 2242(1). See, e.g., ; ; ; . Indeed, sexual abuse is defined by reference to aggravated sexual abuse—Section 2242(1) contains an explicit carve-out for threats encompassed by Section 2241(a)(2). . Sexual abuse occurs, in relevant part, where the defendant knowingly causes another person to engage in a sexual act by threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping). 18 U.S.C. § 2242(1).

When read together, Sections 2241(a) and 2242(1) demonstrate Congresss graded approach to criminalizing sexual assault.11 Aggravated sexual abuse requires the jury to find that the defendant (1) actually used force against the victim or (2) that he made a specific kind of threat—i.e. that he threatened or placed the victim in fear of death, serious bodily injury, or kidnapping. (emphasis in original); see also . In contrast, sexual abuse encompasses the use of any [other] kind of threat or other fear-inducing coercion to overcome the victims will. . Threats or fear-inducing coercion of a lesser nature can support a conviction

for the crime of sexual abuse under § 2242(1) but not aggravated sexual abuse under § 2241(a)(2). Id.

3

Other Circuits have further interpreted Section 2241(a)(1) by reference to a House Judiciary Committee Report accompanying the Sexual Abuse Act of 1986. See (quoting H. Rep. No. 99-594 at 14 n.54a); see also ; ; .

The House Report provides that for Section 2241(a), [t]he requirement of force may be satisfied by a showing of [1] the use, or threatened use, of a weapon; [2] the use of such physical force as is sufficient to overcome, restrain, or injure a person; or [3] the use of a threat of harm sufficient to coerce or compel submission by the victim. H. Rep. No. 99-594 at 14 n.54a (emphasis added). There are two problems, however, with adopting this definition in its entirety.

First and notably, the House Report purports to define something specific—the requirement of force for Section 2241(a). Id. Although this point has been overlooked, see, e.g., , the House Report does not purport to define the element using force against th[e] other person under Section 2241(a)(1). In fact, the House Report also purports to define the requirement of force for Section 2242(1). H. Rep. No. 99-594 at 16. The latter statute, of course, does not contain the element using force against th[e] other person. Therefore, the requirement of force defined in the House Report cannot be the element using force against th[e] other person under Section 2241(a)(1).

The second problem relates to the statutory text. The House Report defines the requirement of force for Section 2241(a) in three ways. The third is the use of a threat of harm sufficient to coerce or compel submission by the victim. Id. at 14 n.54a. But defining force in this expansive way . . . flatly contradict[s] the text of § 2241(a)(1), which requires actual force. ; see also Br. for Appellee 24 (agreeing with the unremarkable proposition that aggravated sexual assault requires a showing of actual force) (quoting (interpreting Section 2241(a)(1))).

Moreover, it is not a solution to construe the House Reports third definition as applying to Section 2241(a)(2) instead of Section 2241(a)(1). On its face, Section 2241(a)(2) encompasses only certain threats of death, serious bodily injury, or kidnapping. 18 U.S.C. § 2241(a)(2). If adopted, the third portion of the House Reports definition would collapse the distinction between Section 2241(a)(2) and Section 2242(1).

Indeed, the Government at no point defends the House Reports third definition. Instead, the Government asks us to adopt the second portion of the House Reports definition, defining the requirement of force as the use of such physical force as is sufficient to overcome, restrain, or injure a person. H. Rep. No. 99-594 at 14 n.54a. The Government relies primarily upon United States v. Lauck, in which the Second Circuit quotes only this portion of the House Reports definition. See Br. for Appellee 17 (quoting at 17). Specifically, Lauck provides that for the purpose of Section 2241(a)(1), [t]he requirement of force may be satisfied by a showing of . . . the use of such physical force as is sufficient to overcome, restrain, or injure a person. . . . (alterations in original) (quoting H. Rep. No. 99-594 at 14 n.54a); see also (same); (same). We agree with this approach and will adopt it for the analysis that follows.12

B

We turn now to the District Courts jury instructions on the alleged deprivation of civil rights through aggravated sexual abuse, 18 U.S.C. § 242. Where, as here, a party has objected to a trial courts jury instruction, [w]e exercise plenary review in determining whether the jury instructions stated the proper legal standard. (citation omitted). We review the wording of instructions for abuse of discretion. . We must reverse if the instruction was capable of confusing and thereby misleading the jury. (en banc); see also . In reviewing the charge, we consider the totality of the instructions and not a particular sentence or paragraph in isolation. (citation omitted).

1

In Shaws case, the District Court first instructed the jury on the base offense of deprivation of civil rights, 18 U.S.C. § 242. As part of this instruction, it charged the jury on the alleged deprivation of the right to bodily integrity, in relevant part, as follows:

The government alleges that the defendant deprived [E.S.] of the right to bodily integrity by sexually assaulting her. In determining whether the alleged conduct of the defendant constitutes unwanted sexual contact, it is not necessary to find that the defendant used physical force against [E.S.]. Instead, you may consider factors such as the context in which the alleged incident occurred, the relationship between the parties, the relative positions of power and authority between the defendant and [E.S.], the disparity in size between the defendant and [E.S.], and the use of mental coercion.

App. 803-04 (emphasis added).

The District Court later instructed the jury on the aggravated crime of deprivation of civil rights through aggravated sexual abuse, 18 U.S.C. § 242. As part of this instruction, the District Court instructed the jury on the element of using force against th[e] other person under Section 2241(a)(1). Shaw challenges a narrow portion of the charge, as follows:

You may find that the defendants conduct involved aggravated sexual abuse if you find that he used force during the alleged sexual assault. . . . [R]estraint alone can constitute sufficient force to meet the force requirement when a defendant employs a degree of restraint sufficient to prevent an individual from escaping the sexual contact. The disparity in coercive power and size between the defendant and [E.S.] are factors that the jury may consider when determining whether force was utilized.

App. 808-09 (emphasis added).

On appeal, Shaw challenges only the emphasized portion of the charge, in which the District Court instructed the jury that disparities in coercive power and size are factors to consider as to aggravated sexual abuse under Section 2241(a)(1).13 Specifically, Shaw argues that this disparit[ies] instruction was strikingly similar to the District Courts earlier instruction on unwanted sexual contact. As such, he argues, the jury instructions collapsed the distinction between the greater and lesser offenses. For the reasons below, we agree.

As to the text of the jury instructions, Shaw correctly notes that the District Court instructed the jury to consider disparities in power and size as factors for both a deprivation of civil rights and a deprivation of civil rights through aggravated sexual abuse. App. 803, 808. First, the District Court instructed the jury to consider the disparity in size between the defendant and [E.S.], and the use of mental coercion when determining whether there was unwanted sexual contact. App. 803-04. Second, it instructed the jury to consider [t]he disparity in coercive power and size between the defendant and [E.S.] . . . when determining whether force was utilized for aggravated sexual abuse. App. 808-09. These instructions together could have confus[ed] and thereby misle[d] the jury into believing that non-consent or coerced consent was equivalent to the use of force. .

Indeed, the Seventh Circuit recently rejected a similar disparities instruction in . In Cates, the trial court charged the jury that, for the purpose of Section 2241(a)(1), [f]orce may also be implied from a disparity in coercive power or in size between the defendant and [victim]. (first alteration in original). On appeal, the Seventh Circuit held that this instruction erroneously conflated the distinction between force and fear, . . . permitt[ing] the jurors to find that [the defendant] committed aggravated sexual abuse based on proof of something less than either physical force or a threat of fear of death or serious bodily injury. Id. We hold the same is true here.

In reaching this conclusion, we recognize that the Tenth Circuit has adopted the opposite position, upholding a jury instruction that [f]orce may also be implied from a disparity in coercive power or in size between the defendant and the victim or from the disparity in coercive power, combined with physical restraint. . The problem with Holly is that the approved jury instruction is unmoored from its foundation.

The disparities instruction approved in Holly is based upon the House Report accompanying the Sexual Abuse Act of 1986. As explained above, the House Report provides that the requirement of force under Section 2241(a) may be satisfied by the use of such physical force as is sufficient to overcome, restrain, or injure a person. H. Rep. No. 99-594 at 14 n.54a (emphasis added). Applying this definition, an early Eighth Circuit decision held that restraint—and thereby force—could be proven, at least in part, through evidence of size disparities. See ; see also ; . Likewise, at oral argument the Government defended the District Courts disparities instruction on the ground that disparities are relevant to physical restraint.14 The Holly instruction, however, contained no such link. Nor did the disparities instruction in Shaws case. Instead, the District Courts disparities jury instruction could have misled the jury into conflat[ing] non-consent or coerced consent with actual force, undermining Congresss graded approach. .

2

This does not, however, complete our analysis. Rather, we must consider the totality of the instructions and not a particular sentence or paragraph in isolation. (citation omitted). Read in their totality, the District Courts jury instructions did not convey to the jury that it could convict Shaw of a deprivation of civil rights through aggravated sexual abuse without finding actual force. Therefore, considering the charge as a whole, we will affirm. See .

Although the District Courts disparities instruction could have misled the jury, other portions of the charge adequately distinguished between the lesser and aggravated offenses. See . As to the lesser offense, the District Court explained to the jury that it is not necessary to find that the defendant used physical force against [E.S.]. App. 803. It instructed the jury that it could convict based upon unwanted or coerced sexual contact, App. 803, or a sexual act that was unauthorized and not due to the free and voluntary consent of [E.S.], App. 804. It instructed the jury to consider whether any such sexual act occurred freely and voluntarily, or was the result of official intimidation, harassment, or coercion. App. 804.

In contrast, as to the aggravated offense, the District Court explained to the jury that Section 2241(a) requires either using force against th[e] other person [o]r placing th[e] other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping. App. 807. Adding clarity, it instructed the jury that Section 2241(a)(1) requires the jury to find that Shaw used force during the alleged sexual assault, App. 808, and contains a requirement of force, App. 808.

Thus, upon consideration of the charge as a whole, the instructional error does not warrant overturning the verdict. See .

C

Relatedly, Shaw also challenges the sufficiency of the evidence for a deprivation of civil rights through aggravated sexual abuse, 18 U.S.C. § 242. Our review of the sufficiency of the evidence is highly deferential. (en banc). We ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (emphasis omitted). For the reasons below, we will affirm.15

As stated above, the crime of aggravated sexual abuse occurs 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 fear that any person will be subjected to death, serious bodily injury, or kidnapping; or attempts to do so. 18 U.S.C. § 2241(a). Under Section 2241(a)(1), [t]he requirement of force may be satisfied by a showing of . . . the use of such physical force as is sufficient to overcome, restrain, or injure a person. . . . (alterations in original) (quoting H. Rep. No. 99-594 at 14 n.54a).

Shaw argues that the evidence was insufficient to establish that he us[ed] force against th[e] other person under Section 2241(a)(1). We disagree. Viewed in the light most favorable to the Government, a rational juror could have found that Shaw used actual force when he forced himself on [E.S.], App. 332, by [p]ressing down his hand on E.S.s chest so that she was unable to get up, App. 404, while committing the sexual act of digital penetration, and laid on E.S. with the weight of his body, while having sexual intercourse with her, such that she was unable to move and felt like [she] couldnt breathe, App. 404. Therefore, Shaws sufficiency of the evidence claim fails.

III

We now address Shaws remaining claims: two evidentiary issues and a constitutional speedy trial claim. Each lacks merit.

A

In his first evidentiary claim, Shaw challenges a portion of E.S.s testimony on redirect examination. Specifically, the District Court permitted E.S. to testify on redirect that she is in therapy in connection with the sexual assault. Shaw objected to this testimony, but the District Court overruled the objection on the ground that Shaw opened the door on cross-examination in two ways: (1) by asking E.S. whether she had done reasonably well getting [her] life together since this event and (2) by asking E.S. whether she had told school students during a presentation that the worst part of her experience in jail was a fight. App. 369, 375.

We need not determine whether the District Court abused its discretion in allowing E.S. to testify that she is in therapy, as any potential error would be harmless. See . An evidentiary error is harmless if it is highly probable that the error did not contribute to the judgment, which requires that the court possess a sure conviction that the error did not prejudice the defendant. Id. (quoting ). Any error in Shaws case would be harmless given the truly overwhelming quantity of legitimate evidence against him, including E.S.s testimony, the DNA evidence, the cell door records, and the surveillance videos, and given that the Government did not mention this testimony in its closing argument. . Thus, this evidentiary claim fails.

B

In his second evidentiary claim, Shaw argues that the District Court admitted lay opinion testimony in violation of Federal Rule of Evidence 701(c). We review this claim for abuse of discretion. See . Under Rule 701, lay opinion testimony must be (a) rationally based on the witnesss perception; (b) helpful to clearly understanding the witnesss testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Fed. R. Evid. 701. Rule 701(c) prohibits a party from us[ing] Rule 701 as an end-run around the reliability requirements of Rule 702 and the disclosure requirements of [Federal Rule of Criminal Procedure 16]. .

Citing Rule 701(c), Shaw challenges the District Courts decision to allow an ECCF maintenance information technician, Neves, to testify as a lay witness. Neves testified regarding the ECCF surveillance camera clocks, which were not synchronized. Neves used arithmetic to synchronize the cameras time stamps ex post. App. 153. His testimony was based on subtraction, not scientific, technical, or other specialized knowledge within the scope of Rule 702. Fed. R. Evid. 701(c); see also (holding that comparing stock quantities and prices did not require specialized knowledge). Thus, the District Court did not abuse its discretion in admitting Neves lay opinion testimony.

C

Finally, Shaw raises a cursory constitutional speedy trial claim. Where, as here, a defendant fails to raise a Sixth Amendment claim in the district court, we review for plain error. See .16

In assessing a constitutional speedy trial claim, we consider the [l]ength of delay, the reason for the delay, the defendants assertion of his right, and prejudice to the defendant. . None of these factors is . . . necessary or sufficient . . . and the factors must be considered together with such other circumstances as may be relevant. (quoting ).

The first factor, the length of the delay, trigger[s] the speedy trial analysis. (citing ); see also (holding that though rigid time limitations have been rejected in analyzing the constitutional right to a speedy trial, a delay of fourteen months triggers an analysis of the remaining Barker factors). In Shaws case, the Government concedes that a delay of twenty-seven months was sufficient to trigger an analysis of the remaining Barker factors.

But rather than argue the Barker factors, Shaw merely contends that prejudice can be presumed from the length of the delay. See (recognizing that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify). However, even assuming arguendo that the delay in Shaws case was presumptively prejudicial, Doggett further provides that such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria. ; see also . Thus, there is no clear error.17

IV

The judgment of the District Court will be affirmed.

Notes

1
The victim is herein identified only by her initials.
2
E.S.s cellmate testified that she remained asleep.
3
At trial, E.S. testified that she is five feet, five inches tall and one hundred and thirty pounds; she estimated that Shaw is over six feet tall and far heavier than she.
4
The facilities systems clock is accurate because Neves calibrates it twice a week.
5
Neves made his calculations a few days after the incident, and so his chart approximated the drift on the night of the incident. One surveillance camera clock was four minutes and forty seconds ahead of the facilities systems clock; another was five minutes and thirteen seconds behind. In short, even though the surveillance cameras were recording simultaneously, they showed a nine minute and fifty-three second difference in time.
6
If the time stamps had not been corrected, the videos would have shown Shaw returning from break at 2:42:49, a minute before E.S.s cell door opened at 2:43:41 a.m.
7
The jury, however, found that the deprivation of civil rights did not result in bodily injury. See 18 U.S.C. § 242.
8
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
9
Cf. (holding that the Eighth Amendment bars the death penalty for rape of a child where the crime did not result and was not intended to result in death).
10
A sexual act includes, in relevant part, the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person or contact between the penis and the vulva. 18 U.S.C. § 2246(2)(A), (C). A sexual act require[s] penetration or actual skin-to-skin contact between various specified body parts. (citing 18 U.S.C. § 2246(2)(A)-(C)); see also id. (citing 18 U.S.C. § 2246(2)(D)); (observing that sexual act . . . requires skin-to-skin touching).
11
The legislative history further supports this reading of the text. Sections 2241 and 2242 were enacted together as part of the Sexual Abuse Act of 1986, Pub. L. No. 99-654, 100 Stat. 3660 (1986). The Act created a series of graded sexual offenses and employed a graded approach to criminalizing sexual assault. Hearings on Sexual Abuse Act of 1986 before Subcommittee on Criminal Justice of the House Committee on the Judiciary, 99th Cong., 2d Sess. at 3-4 (Apr. 29, 1986) (statement of principal sponsor Representative Steny H. Hoyer); see also H. Rep. No. 594, 99th Cong., 2d Sess. (May 9, 1986), reprinted in 1986 U.S.C.C.A.N. 6186, 6190 (identifying Representative Hoyer as the principal sponsor).
12
We need not reach the first portion of the House Reports definition, providing that for Section 2241(a), [t]he requirement of force may be satisfied by a showing of the use, or threatened use, of a weapon. H. Rep. No. 99-594 at 14 n.54a.
13
This opinion should not be read to approve of any portion of the jury instructions not challenged on appeal.
14
See Oral Argument at 1:14:53 (The disparity in size and coercive power is certainly relevant as to whether the force is sufficient to restrain the victim.); id. at 1:15:46 (Im saying physical force sufficient to restrain the victim, and in that instance a disparity in size and coercive power is certainly relevant to that finding.). Conversely, the Government disclaimed the position that disparities in coercive power without physical restraint amount to the use of force under Section 2241(a)(1). Id. at 1:17:02 (positing that if there were physical disparities but no restraint I dont know that there would be force, unless the victim is testing that she is physically unable to escape the sexual contact.); id. at 1:25:51 (positing that coerced sexual intercourse based upon a correction officers threat to revoke inmates visitation and telephone privileges would not entail the requisite force to bring this to an aggravated sexual abuse).
15
The parties dispute whether Shaw preserved his sufficiency of the evidence claim in the District Court through a motion for judgment of acquittal. We need not resolve this dispute because, even assuming arguendo that the issue was preserved, the claim fails.
16
The plain error test requires (1) an error; (2) that is clear or obvious and (3) affected the defendants substantial rights, which in the ordinary case means he or she must show a reasonable probability that, but for the error, the outcome of the proceeding would have been different. (quoting ). If these conditions are met, we will exercise our discretion to correct the error if it seriously affects the fairness, integrity or public reputation of judicial proceedings. Id. (quoting ).
17
Shaw further argues, fleetingly, that that the Government failed to disclose a letter written by E.S., and that the District Court erred by declining to permit the playing of a supposedly corresponding audio recording. Arguments raised in such a cursory fashion, without adequate citation to the record and authority, are deemed waived. See ; Fed. R. App. P. 28(a)(8)(A). And regardless, both contentions lack merit. As reference to the letter drafted by E.S., Shaw cites the Presentence Investigation Report. That report contains a victim impact statement requested by the Probation Office in preparation for sentencing. Nothing in the Presentence Report, which is the only record support cited by Shaw, suggests that E.S. prepared this statement or provided it to the Government prior to entry of the jury verdict. With respect to the audio recording, the record establishes that trial counsel initially proposed to play a portion of E.S.s recorded interview, outside the presence of the jury, to refresh her recollection. However, counsel withdrew the request. As such, neither issue presents a basis for relief.
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