UNITED STATES of America, Plaintiff-Appellee Cross-Appellant, v. Alexander McQUEEN, Steven Dawkins, Defendants-Appellants Cross Appellees.
No. 12-10840.
United States Court of Appeals, Eleventh Circuit.
Aug. 22, 2013.
1144
Ari H. Gerstin, Richard A. Sharpstein, Akerman Senterfitt, LLP, Janice Burton Sharpstein, Jorden Burt, LLP, Miami, FL, for Defendant-Appellant-Cross Appellee.
MARCUS, Circuit Judge:
Alexander McQueen, a Sergeant at the South Florida Reception Center (“SFRC“), appeals his conviction for conspiring to deprive several inmates of their right to be free from cruel and unusual punishment following a jury trial, in violation of
In a cross-appeal, the government contests McQueen‘s sentence of a twelve month prison term and Dawkins‘s sentence of only one month in jail, arguing that the sentences varied sharply from the recommended Guidelines range—indeed, they varied downward by more than 90% from the bottom of the sentencing range—and were substantively unreasonable. After thorough review, we affirm the convictions but vacate the sentences and remand for resentencing.
I.
A.
The essential facts adduced at trial are these: Scott Butler, Guruba Griffin, Alexander McQueen, and Steven Dawkins (collectively, “the Corrections Officers“) worked as law enforcement officers at the South Florida Reception Center, a state prison in Doral, Florida. A federal grand jury sitting in the Southern District of Florida charged that, on or about February 25, 2009, Butler, Griffin, and McQueen assaulted prisoners, sometimes using broomsticks, as Dawkins idly watched. Count One of the indictment specifically alleged that the four prison guards conspired in violation of
Although the Corrections Officers were to be tried together, the government sought to introduce Rule 404(b) evidence that Butler and Griffin organized fights among inmates, that they regularly carried broomsticks as weapons, and that Griffin routinely disciplined inmates using extreme and violent measures. Since some of this evidence was relevant only as to Griffin and Butler but could unfairly prejudice Dawkins and McQueen, the district court concluded that the trial should engage the services of two petit juries. One jury would hear all the evidence, including evidence of other crimes, wrongs, or acts,
Both juries heard an extensive and violent story concerning the abuse and beatings of several inmates at the South Florida Reception Center. Juedline Bertrand and Marvin Woods were housed in the “youthful offender” wing of the prison, where every prisoner under the age of twenty-one and convicted of a felony was kept, segregated and safeguarded from the older inmates in the prison. On February 25, 2009, Bertrand accused Woods of stealing his “honey bun“; a fight broke out between them in an empty room on the second floor of their prison wing. During the fight, Woods smashed his head against an object—a toilet or possibly the metal frame of a bunk bed—causing him to gash his face and bleed. As the fight wound down, the public address system instructed the prisoners to return to their cells. Bertrand returned, but Woods, who was dazed and confused, didn‘t move. Officer Griffin, who was going from cell to cell counting the inmates, found Woods in an empty room. When Woods would not disclose who injured him, Griffin ordered every inmate in the wing—two dozen or so—into the day room, demanded that the prisoners get their stories straight, and walked out.
Griffin later returned to the day room with Sergeant McQueen and Officer Dawkins in tow. Griffin asked the assembled inmates who had fought with Woods. No one responded. McQueen was the ranking officer at the time. In retaliation for the prisoners’ silence, McQueen grabbed a broomstick, snapped it in half, and whacked Woods‘s legs with the broken broomstick. Woods begged McQueen to stop, but that apparently further enraged the officer, causing him to slam Woods‘s head, aggravating Woods‘s injury. Officer Griffin, also armed with a broomstick, then turned his attention to inmate Rondell Lyles. Griffin asked Lyles whether he had seen the fight. Lyles said that he had not. Apparently not believing Lyles, Griffin directed Lyles to put his hands on a bench, whereupon he smacked Lyles‘s knuckles some three to six times with the broomstick half.
Griffin then asked the assembled inmates if any of them wanted to fight. One prisoner, Branden Pressley, responded that he would brawl with Bertrand. Griffin sanctioned the fight, but imposed certain rules—the fighters were required to box, not wrestle, for three rounds of three minutes each. Not being professional boxers, Pressley and Bertrand violated the rules and, at times, wrestled. When that happened, Griffin and McQueen hit or slapped the violator. At one point, Sergeant McQueen fiercely choked Pressley, who begged McQueen and Griffin to stop the fight. The officers wouldn‘t let him quit, however, forcing the fight to continue. When the fight finally ended, Bertrand sucker punched Pressley, which led McQueen to attack Bertrand, again with the broomstick. Tired and overpowered by a corrections officer wielding a broomstick, Bertrand curled into a defensive ball. Griffin came over to Bertrand, reassured him that he could get off the floor, and promised that no one would hurt him any more. But as soon as Bertrand stood up, Griffin slapped or punched his nose, causing it to bleed. Griffin grabbed Bertrand‘s throat, choking him with two hands and digging his nails into the inmate‘s neck. Griffin converted the choke into a chokehold and held it long enough to knock Bertrand unconscious.
The wanton violence continued on February 25th. Griffin and McQueen proceeded to beat another inmate, Kenneth Stew
Several prison officials testified at trial. They recounted in some detail the injuries sustained by inmates Bertrand, Jarret, Martinez, Steward, and Woods to their chests, arms, and biceps. The injuries were visible days after the attacks. The officials also testified that corrections officers were required to report any violence involving the prisoners, including the use of force by other corrections officers. Nevertheless, two reports—one written by McQueen and the other by Dawkins—downplayed or ignored the repeated acts of violence that occurred on February 25, 2009. Dawkins signed a housing unit log that made no mention of violence or of any fighting. McQueen, who eventually accompanied Woods to the medical station, drafted an incident report about Woods‘s injuries. The report falsely failed to recite that Woods was attacked by Sergeant McQueen; rather, it explained that Woods had injured himself while cleaning the shower.
The second of the two petit juries also heard additional testimony concerning Officers Griffin and Butler. Griffin repeatedly warned the prisoners that, if any of them had a problem with another inmate, he would let the two fight. Griffin also forced the arms of at least two prisoners inside ice water filled coolers, waited for the ice water to numb their arms, and then struck their hands with handcuffs or broomsticks.
In the end, the jury found Sergeant McQueen guilty both of conspiring to violate the prisoners’ civil rights and of filing a false report in order to obstruct justice. The same jury, however, found Officer Dawkins not guilty of conspiring to violate the prisoners’ right to be free from cruel and unusual punishment, but concluded that he too was guilty of obstructing justice. The second jury found Butler not guilty, but it could not return a verdict against Officer Griffin, resulting in a mistrial.
B.
The district court scheduled Griffin‘s case for a second trial, but instead Griffin entered into a plea agreement whereby he would plead guilty to a misdemeanor for willfully depriving one inmate of a right secured by the Constitution in violation of
As for McQueen, his obstruction of justice charge carried a maximum sentence of twenty years in jail, while his conspiracy to violate the inmates’ civil rights charge carried a maximum sentence of ten years’ imprisonment. His base offense level was calculated at 14,
Before sentencing, the district court informed the parties that it was troubled by the disparity between the prison exposure McQueen and Dawkins faced on the one hand and the maximum exposure Griffin faced for a misdemeanor conviction on the other. The court observed that Griffin faced a maximum of only one year of imprisonment and concluded that it could not, in good conscience, sentence McQueen and Dawkins to far heavier prison terms as the Guidelines had suggested. Ultimately, the trial court sentenced McQueen to twelve months’ imprisonment on the
Dawkins and McQueen timely appeal their convictions, raising a battery of claimed errors. The government, in turn, has cross-appealed from the sentences, claiming they are substantively unreasonable.
II.
McQueen and Dawkins cite several errors on appeal. First, they both allege the government introduced no evidence that the defendants knew they were obstructing a federal investigation, which they claim was required by
A.
McQueen and Dawkins first claim that the district court misread the obstruction of justice statute, arguing that
We review the interpretation of a statute de novo. United States v. Johnson, 399 F.3d 1297, 1298 (11th Cir. 2005). We begin as always with the text of the statute. Harris v. Garner, 216 F.3d 970, 972 (11th Cir. 2000) (en banc).
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
Every court of appeals that has addressed this issue has reached the same conclusion. Thus, for example, the Third Circuit in United States v. Moyer rejected the same argument made by Dawkins and McQueen, because the “most natural reading of
This conclusion is amply supported by
B.
McQueen also raises a sufficiency argument about the conspiracy conviction, claiming there was no evidence of any plan or agreement to interfere with the civil rights of the inmates and no evidence that he knowingly joined any conspiracy. “We review the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the verdict.” United States v. Tobin, 676 F.3d 1264, 1289 (11th Cir. 2012) (quoting United States v. Chirino-Alvarez, 615 F.3d 1344, 1346 (11th Cir. 2010) (per curiam)).
The statute—
Moreover, the nature of a conspiracy often requires that its existence be proven inferentially or circumstantially from the conduct of the participants. United States v. Molina, 443 F.3d 824, 828 (11th Cir. 2006). “A conspiracy conviction will be upheld ... when the circumstances surrounding a person‘s presence at the scene of conspiratorial activity are so obvious that knowledge of its character can fairly be attributed to him.” United States v. Mateos, 623 F.3d 1350, 1362 (11th Cir. 2010) (alterations in original) (quoting United States v. Figueroa, 720 F.2d 1239, 1246 (11th Cir. 1983)).
The evidence, taken in a light most favorable to the jury‘s verdict, is sufficient to establish an illegal agreement among McQueen, Griffin, and others on the night of February 25th to violate the civil rights of numerous inmates at the prison facility. For starters, by many accounts (obviously credited by the jury) McQueen and Griffin joined together to use force and violence against the inmates, not in order to maintain discipline, but as a way of punishing them. The evidence showed that Griffin, in Sergeant McQueen‘s presence, beat one inmate around the hands with a broomstick when the inmate refused to offer the name of another prisoner who fought with Woods. Despite McQueen‘s obligation to intervene he did nothing. The evidence also revealed that McQueen, in the presence of the other officers, including Griffin, assaulted another inmate—who had been involved in a prison fight—beating him with a broken broomstick and throwing him to the ground, when this prisoner refused to disclose the name of the inmate with whom he had been fighting. Again,
The evidence further established that the officers, including McQueen and Griffin, sanctioned a prison fight between two of the inmates. The rules of the fight were set by Griffin in the presence of Sergeant McQueen. And when the inmates broke the rules, defendant McQueen beat the inmates in order to compel compliance. McQueen also stood by and did nothing as other corrections officers beat still more inmates. This evidence, likewise, contradicted McQueen‘s incident report, which made no mention of the pervasive violence. Thus, the evidence suggests, at a minimum, that McQueen and Griffin gathered in a day room and pummeled various prisoners in tandem, and McQueen sought to hide the incident from his superiors despite his plain duty to inform them.
C.
At the end of the trial, the appellants asked the district court to give the jury two defense instructions, one concerning accomplices, informers, or immunized witnesses, and the other addressing multiple conspiracies. The court denied both requests; McQueen and Dawkins claim that each error requires a new trial. We are unpersuaded.
We review a district court‘s decision to refuse to give a requested jury instruction for abuse of discretion. United States v. Condon, 132 F.3d 653, 656 (11th Cir. 1998) (per curiam). Criminal defendants may request that the court instruct the jury about their theory of defense “separate and apart from instructions given on the elements of the charged offense” if “there has been some evidence adduced at trial relevant to that defense.” United States v. Ruiz, 59 F.3d 1151, 1154 (11th Cir. 1995). McQueen and Dawkins‘s first assignment of error fails because they presented no evidence that the corrections officer or inmates who were called to testify were subject to pending disciplinary charges or criminal prosecution, or that any of them received immunity in exchange for testimony, or finally that any were paid to testify. In short, there was no evidence that these witnesses were accomplices, informants, or otherwise immunized.
Moreover, there was no evidence presented in support of a multiple conspiracy charge. The indictment charged a single conspiracy among the correction officers (including Sergeant McQueen) to deprive numerous inmates of their rights to be free from cruel and unusual punishment. The evidence presented supported a finding of a single conspiracy, not multiple conspiracies. The defendants have failed to identify any credible evidence supporting multiple conspiracies. Indeed, the evidence established only that several corrections officers acting in concert beat inmates at SFRC, forced them to fight among themselves, and did nothing as the beatings unfolded.4
Dawkins and McQueen, relying on United States v. Hilton, 772 F.2d 783 (11th Cir. 1985), also claim the government improperly bolstered the credibility of a corrections officer, Shalisa Rolle. We disagree.
In the first place, it‘s not at all clear to us that the prosecutor improperly bolstered Rolle‘s testimony. On direct examination she testified that she did not initially disclose the events of February 25th to the investigators because she didn‘t want to get involved. She then explained that she told the FBI what she knew only after they told her they were going to polygraph her and that she could face ten years in jail. Defense counsel also inquired about Rolle being threatened by the FBI. Throughout her examination Rolle made it clear that she was never polygraphed. Then, on re-direct examination, the prosecutor asked the witness if she eventually told the truth because she would have flunked a polygraph test if she took it. The defendants objected and sought a mistrial; the district court overruled the objection and denied the motion for a mistrial, reasoning that Rolle never took a polygraph test. Rather, she was threatened with one.
Hilton is inapposite, because unlike in Hilton, Rolle never indicated that she was willing to take a polygraph test and never did so. Her testimony was not bolstered in any way by the view that the witness had some extra indicia of credibility because of her willingness to be polygraphed. Nor, unlike the circumstances found in Hilton, was Rolle testifying pursuant to the terms of a plea agreement. There was, in short, nothing suggesting to the jury that the prosecutor possessed some form of extrinsic evidence never shown to the jury that convinced the prosecution the defendants were guilty.
But even if we assume there was error, the error would warrant a reversal only if it “affected the substantial rights of the defendants.” Hilton, 772 F.2d at 786; see also United States v. De La Cruz Suarez, 601 F.3d 1202, 1218 (11th Cir. 2010) (“[P]rosecutorial misconduct, such as vouching, is ‘a basis for reversing an appellant‘s conviction only if, in the context of the entire trial in light of any curative instruction, the misconduct may have prejudiced the substantial rights of the accused.’ ” (quoting United States v. Lopez, 898 F.2d 1505, 1511 (11th Cir. 1990))). “A defendant‘s substantial rights are prejudicially affected when a reasonable probability arises that, but for the remarks, the outcome of the trial would be different.” Id. (quoting United States v. Hall, 47 F.3d 1091, 1098 (11th Cir. 1995)). The appellants cannot meet this burden.
Rolle‘s testimony was minor. She testified that she saw the prisoners in the day room and that two inmates were preparing to fight as the Corrections Officers stood by. But this testimony duplicates the testimony of seven other witnesses. Moreover, Rolle did not discuss the wanton violence inflicted on the inmates by Griffin and McQueen—facts presented by several eyewitnesses. Given the overwhelming and repeated evidence of the beatings and the multiple acts of concealment, we have little difficulty in concluding that any claimed error did not affect the defendants’ substantial rights. See United States v. Cano, 289 F.3d 1354, 1366 (11th Cir. 2002).
III.
Turning to the government‘s cross-appeal, the United States argues that the sentencing of McQueen and Dawkins was substantively unreasonable. After thor
When imposing a sentence, the court is obliged to consider a critical list of penological factors outlined by Congress in
It is abundantly clear that the district courts have institutional advantages in applying and weighing
[A]n appellate court may still overturn a substantively unreasonable sentence, albeit only after examining it through the prism of abuse of discretion, and ... appellate review has not been extinguished. Thus, a sentence still may be substantively unreasonable if it does not achieve the purposes of sentencing stated in
§ 3553(a) . So, even though we afford due deference to the district court‘s decision that the§ 3553(a) factors, on a whole, justify the extent of the variance, we may find that a district court has abused its considerable discretion if it has weighed the factors in a manner that demonstrably yields an unreasonable sentence. We are therefore still required to make the calculus ourselves, and are obliged to remand for resentencing if we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the§ 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.
515 F.3d at 1191 (citations omitted).
Moreover, our review for substantive reasonableness is not limited to the factors examined by the district court.
The sentences in this case are substantively unreasonable because they are wholly insufficient to achieve the purposes of sentencing set forth by Congress in
This purpose—essentially the “just deserts” concept—should be reflected clearly in all sentences; it is another way of saying that the sentence should reflect the gravity of the defendant‘s conduct. From the public‘s standpoint, the sentence should be of a type and length that will adequately reflect, among other things, the harm done or threatened by the offense, and the public interest in preventing a recurrence of the offense.
S.Rep. No. 98-225, at 75-76 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3258-59. “Because the punishment should fit the crime, the more serious the criminal conduct is the greater the need for retribution and the longer the sentence should be.” Irey, 612 F.3d at 1206.
The appellants’ actions as corrections officers were particularly serious. McQueen‘s conduct as a ranking law enforcement officer was egregious. He was a sergeant then in charge of the youthful offender wing of the South Florida Reception Center on the night of February 25th. He wantonly attacked a young and injured prisoner with a broken broomstick and slammed the prisoner (face first) when the inmate refused to answer the officers’ questions. The force of the slam aggravated the gash on the already wounded prisoner. He forced two other prisoners to box and slapped and choked them when they did not fight to his liking. McQueen choked Pressley, causing Pressley to beg for the fight‘s end, all to no avail. And McQueen struck at least three other young inmates with part of a broomstick—a dangerous weapon—leaving welts and bruises that remained days after the beatings. To cover his tracks, McQueen filed a false report, lied about the injuries suffered by inmate Woods, and failed to mention the physical abuse sustained by several of the prisoners. McQueen also sat idly by as other inmates were beaten by still other corrections officers for no legitimate reason even remotely related to maintaining order and discipline. Moreover, Dawkins also helped to conceal this brutal behavior. Despite having a duty to report McQueen‘s actions, co-defendant Dawkins likewise failed to inform anyone about the repeated beatings and, in fact, filed a flagrantly false report that failed to mention any of the violence that pervaded the youthful offender wing on February 25, 2009.
A violation of
Section 241 was enacted as part of what came to be known as the Enforcement Act of 1870. The Act was passed on May 31, 1870, only a few months after ratification of the Fifteenth Amendment.... Between 1866 and 1870 there was much agitated criticism in the Congress and in the Nation because of the continued denial of rights to Negroes, sometimes accompanied by violent assaults. In response to the demands for more stringent legislation Congress enacted the Enforcement Act of 1870.... [I]t included § 241 in the Act using broad language to cover not just the rights enumerated in § 242, but all rights and privileges under the Constitution and laws of the United States.
... It is clear, therefore, that § 241, from original enactment through subsequent codifications, was intended to deal, as Mr. Justice Holmes put it, with conspiracies to interfere with “Federal rights, and with all Federal rights.”
United States v. Price, 383 U.S. 787, 801-03 (1966) (footnotes & citations omitted). Congress fully understood the importance of protecting citizens from the abuses of official power. See id. at 819 (“I believe that the United States has the right, and that it is an incumbent duty upon it, to go into the States to enforce the rights of the citizens against all who attempt to infringe upon those rights when they are recognized and secured by the Constitution of the country.” (quoting Cong. Globe, 41st Cong., 2d Sess., 3611-3613 (1870) (remarks of Sen. Pool))). The evils against which this civil rights statute is directed especially include correctional officers who flagrantly beat inmates (and young ones at that) placed by the law in their charge. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (“Being violently assaulted in prison is simply not part of the penalty offenders pay for their offenses against society.” (internal quotation marks omitted)).
In the second place, these sentences wholly fail to adequately deter criminal conduct.
Moreover, violent abuse by corrections officers against inmates may easily go undetected and unpunished. The facts adduced at trial fully bear this out: of some two dozen prisoners who saw the gross violation of the constitutional rights of many prisoners, only one spoke out. The other inmates remained silent in fear of reprisal and, indeed, in some cases even lied to prison officials during the investigation, telling the officials they saw nothing. The fear of retaliation from Griffin, McQueen, and other corrections officers was palpable and well founded. The ability to unearth these crimes by law enforcement officers in a prison setting is particularly difficult, and, as we see it, the
We add that obstruction of justice is a crime that Congress also has aggressively sought to deter. When it passed
In the third place, the sentences imposed on McQueen and Dawkins fall far below the sentencing range that the Guidelines have established.
The district court viewed the “need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct” as critical.
Moreover, the need to avoid unwarranted sentencing disparity also requires the court to consider other similarly situated defendants—criminal defendants in other cases who were convicted of similar crimes. See Pugh, 515 F.3d at 1202. As best as we can tell, the federal courts have treated violations of
Thus, taking the
Accordingly, we vacate the sentences imposed on McQueen and Dawkins and remand to the district court for further review and resentencing. In so doing we do not suggest what the sentence should be; nor do we intimate that no variance is justified. We simply hold that downward variances of more than 90% where one corrections officer brutalized more than five young prisoners and then lied about it, and another intentionally sought to conceal these serious crimes are unreasonable.
AFFIRMED in part, VACATED in part, and REMANDED for further proceedings consistent with this opinion.
Michele D. BURDEN, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
Helen C. Coleman, Claimant-Appellant, v. Eric K. Shinseki, Secretary of Veterans Affairs, Respondent-Appellee.
Nos. 2012-7096, 2012-7122.
United States Court of Appeals, Federal Circuit.
July 16, 2013.
Rehearing and Rehearing En Banc Denied in No. 2012-7122 Sept. 26, 2013.
Rehearing and Rehearing En banc Denied in No. 2012-7096 Sept. 30, 2013.