United States v. Lanham

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0261p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee/Cross-Appellant -

UNITED STATES OF AMERICA,

(09-5094/5095), --

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Nos. 08-6504/6506;

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09-5094/5095

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v.

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WESLEY LANHAM (08-6504; 09-5094);

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SHAWN FREEMAN (08-6506; 09-5095),

Defendants-Appellants/Cross-Appellees. -

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Appeal from the United States District Court

for the Eastern District of Kentucky at Covington.

Nos. 08-00005-002; 08-00005-003—Danny C. Reeves, District Judge.

Argued: March 5, 2010

Decided and Filed: August 24, 2010

Before: KEITH, BOGGS, and GRIFFIN, Circuit Judges.

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COUNSEL

ARGUED: Martin S. Pinales, STRAUSS & TROY, Cincinnati, Ohio, Randy J.

Blankenship, BLANKENSHIP MASSEY & STEELMAN, PLLC, Erlanger, Kentucky,

for Appellants. Conor B. Dugan, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellee. ON BRIEF: Martin S. Pinales, Candace C. Crouse,

STRAUSS & TROY, Cincinnati, Ohio, Randy J. Blankenship, C. Ed Massey,

BLANKENSHIP MASSEY & STEELMAN, PLLC, Erlanger, Kentucky, for Appellants.

Conor B. Dugan, Mark L. Gross, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellee.

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OPINION

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DAMON J. KEITH, Circuit Judge. Defendants Wesley Lanham (“Lanham”) and

Shawn Freeman (“Freeman”) were convicted of violating an inmate’s civil rights in

1

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violation of 18 U.S.C. §§ 241 and 242, and making a false entry in violation of 18 U.S.C.

§ 1519. Defendants were prison jailers when prison inmate, J.S., was raped in jail.

Defendants and their supervisor, Shawn Sydnor (“Sydnor”), decided to “scare” J.S. after

he was arrested for committing a traffic violation, by placing him in a general population

jail cell. Defendants now appeal their convictions and sentences, arguing that there was

insufficient evidence to support their convictions, and Freeman claims that he was

entitled to a downward sentencing departure. The government appeals the district

court’s application of the 2006 Sentencing Guidelines to Defendants’ sentences and

refusal to apply a sentencing enhancement to Lanham. For the reasons discussed herein,

we AFFIRM.

I. BACKGROUND

On February 14, 2003, Defendants Lanham and Freeman were working as

corrections officers at the Grant County, Kentucky, Detention Center. Sergeant Shawn

Sydnor and deputy jailers Jack Powell (“Powell”), Mark Coleman, Wendy Guthrie

(“Guthrie”), and Lula Garrison were also working the same shift, which began on

February 13, 2003, at 11 p.m. and ended on February 14, 2003, at 7 a.m. Lanham and

Freeman were assigned to the Class D section of the Detention Center, and Sydnor was

the supervisor that evening. That evening, J.S. was arrested for a traffic violation and

brought to the Detention Center by Sheriff’s Deputy Scott Allen. J.S. had been speeding

and was arrested for eluding police. Deputy Allen told Sergeant Sydnor that J.S. had

almost hit an off-duty police officer, who was Sydnor’s friend.

J.S. was eighteen years old, six feet tall, and weighed around 125 pounds. He

had blond highlights in his hair, wore a bright shirt, and had heart shapes on his

undershorts. Sydnor described J.S. as a “[s]cared little kid” who was “[s]issy looking.”

(R. 91, Tr. at 51.) When J.S. arrived, Sydnor called Guthrie, Lanham, and Freeman to

come to the booking room to look at J.S.’s hair. During booking, Sydnor, Lanham, and

Freeman teased and laughed at J.S. The officers told J.S. that he looked “like a girl” and

a “sissy,” and they made fun of his highlighted hair and undershorts. (R. 91, Tr. at 54.)

Sydnor told J.S. that he was “cute” and testified that he heard someone tell J.S. that he

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would make a “good girlfriend for the inmates.” (Id. at 55.) J.S. began shaking and

crying. Powell testified that he asked J.S. “what he was thinking, wearing silk heart

shaped boxers in jail on Valentine’s Day.” (R. 86, Tr. at 118.) Powell noted that “[i]t

wasn’t very smart because of the sexual content that could be brought because of it.”

(Id.) J.S. was booked at 1:05 a.m.

Sydnor told Lanham and Freeman that J.S. “needed to be scared.” (Id.) Sydnor

asked them to find J.S. a general population cell. Lanham stated that he “knew a guy

down in 26 Hall” in Cell 101, Bobby Wright. (R. 91, Tr. at 57-58.) The inmates housed

in 26 Hallway included those convicted of misdemeanors and felonies, and 26 Hallway

was known as the “hallway from hell.” (Id. at 59, 64.) Detention Center Nurse Sandy

Cook (“Nurse Cook”) described the inmates there as “almost . . . animalistic,” noting

that “there was so much testosterone . . . it was just a horrible place.” (R. 93, Tr. at 29.)

Sydnor testified that he was aware of instances of inmates expressing concern about

sexual assault; that sexually predatory behavior occurred in the prison; and that 26

Hallway had more incidents of sexually predatory conduct than other areas of the jail.

Jailer Guthrie testified that the Detention Center staff were aware of 26 Hallway’s

violent reputation.

Cell 101, which is located in 26 Hallway, housed felony-convicted prisoners, and

there were between twelve and fourteen inmates in the cell that evening. Among the

prisoners was Victor Zipp, who was known as an intimidating leader in the cell. Zipp

was often naked, and guards frequently had to tell him to put on clothes. Lanham and

Freeman had both worked in 26 Hallway prior to February 13, 2003. Earlier that

evening, Freeman had assisted in the removal of an inmate from Cell 102 in 26 Hallway

whom inmates had beaten up. Bobby Wright testified that the inmates in 26 Hallway

were “pretty rowdy” and “were looking for anything to go down again.” (R. 86, Tr. at

72.)

After Lanham volunteered that he knew an inmate in Cell 101, he and Freeman

left booking and proceeded to 26 Hallway. After they left, Wendy Guthrie told Sydnor,

“please don’t put [J.S.] down there, somebody is going to beat him up.” (R. 92, Tr. at

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132-33.) Sydnor told her that it was none of her business and that he wore the sergeant’s

stripes. Lanham and Freeman proceeded to Cell 101. Inmate Wright went to speak to

Lanham and Freeman, and there were other inmates around the door as well. Lanham

and Freeman were both standing outside the door while they spoke to Wright. Lanham

and Freeman told Wright they were going to bring J.S. down to Cell 101, and Lanham

told Wright they wanted him to “f-ck with” J.S. Freeman shook his head up and down

as Lanham spoke. The other inmates standing close to the door reacted with celebration.

Neither Lanham nor Freeman told the inmates to avoid hurting J.S. Wright testified that

the inmates began behaving in ways that he had never seen before immediately after the

guards told the inmates to “f-ck with” J.S.

Lanham and Freeman returned to the booking area, and Lanham told Sydnor that

he had spoken to Wright and that everything had been “taken care of.” (R. 91, Tr. at 62.)

Sydnor and Powell then escorted J.S. to Cell 101 in 26 Hallway. J.S. was crying.

Sydnor testified that the inmates were “hollering” and being “rowdy and noisy.” (R. 92,

Tr. at 5.) J.S. overheard an inmate call out, “Oh, it’s Valentine’s Day, bring him here.

He’d make a good girlfriend.” (R. 86, Tr. at 37.) Powell heard an inmate describe J.S.

as “pretty” and “cute.” (Id. at 121.) Because of the sexual comments, Powell was

concerned that this area was not safe for J.S. At least three or four inmates waited at the

door when J.S. arrived and as he entered the cell. Some said things like, “He’s so pretty,

bring him in here. We’ve got a nice spot for him.” (Id. at 38.) J.S. said he heard one

of the guards say, “Here you go boys. I got some fresh meat for you.” (Id. at 38-39.)

A guard pushed J.S. into the cell and closed the door.

An inmate then grabbed J.S. around the arm and led him over to a bed. Inmates

played with his hair, saying, “Oh it’s so pretty. I love blond highlights. You look just

like a girl.” (Id. at 39.) Soon after, several inmates picked him up, started taking off his

clothes, and slapped him with their prison flip-flops. J.S. called out for help numerous

times, but no one responded. The inmates then dropped J.S. on his back and took him

into the cell’s shower area. The inmates pushed him against the shower wall and turned

on the hot water; an inmate started beating his head against the wall. J.S. felt a strong

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pain in his buttocks and believed he was being anally raped. Eventually, J.S. got out of

the shower and tried to run towards the door, but he fell on the floor. Zipp came out of

the shower area naked. Some inmates picked J.S. up and started pressing his buttocks

against the cell’s window. Zipp told J.S. he had two choices: “Either get f-cked in the

ass or suck my dick.” (Id. at 44.) J.S. told him that he did not want to do either and said

no several times. An inmate came up behind J.S., punched him in the head, and forced

him to open his mouth. Zipp grabbed J.S. by the hair and forced his penis into J.S.’s

mouth. J.S. bit down as hard as he could, and Zipp withdrew. An inmate hit him in the

head again. After that, J.S. was left alone.

The guards left J.S. in Cell 101 all night and never checked on him. Later that

morning, J.S. was brought to pretrial services. J.S. saw the Detention Center’s nurse,

Nurse Cook, who testified that J.S. told her that “he had been traumatized and he been

raped and he had been abused all night long.” (R. 93, Tr. at 32.) Around 10:00 a.m., J.S.

learned that he would be released from the jail, and his father picked him up. As they

left, J.S. told his father that the jailers had placed him in a cell with other inmates, and

that the inmates had raped him. A day or two later, J.S.’s father brought him to St.

Luke’s Hospital where he was treated for abrasions inside his mouth, bruising on his left

buttocks, and an abrasion on his left lower chin and lower left leg.

Subsequent to February 14, 2003, Lanham admitted that he spoke to Bobby

Wright that night. Lanham admitted that the officers intended to scare J.S. and that they

spoke to Wright about this. He admitted that he participated in the plan for J.S. to be

housed in Cell 101. He also admitted that he knew that the guards had no control over

what happened to J.S. after he was placed into Cell 101. Several witnesses testified that

the general population cells were not safe for someone without prison experience, and

J.S. in particular. Deputy Wendy Guthrie stated that she had no doubt that danger was

awaiting J.S. when he was placed in Cell 101. She was concerned that “he would get

beat up.” (R. 92, Tr. at 13.) Nurse Cook testified that she did not believe that J.S. would

have been safe in 26 Hallway because of its gang members, and that it was inappropriate

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to house him there. Inmate Wright testified that Lanham was aware that the prison

housed violent felons.

During the shift beginning the night of February 14, 2003, Sydnor and the other

officers learned that J.S. had been raped and beaten in the cell. Sydnor fabricated a story

and told Lanham and Freeman to say that they needed to move J.S. to the general

population cells because the detox cells needed to be decontaminated. However, J.S.

was the only prisoner moved out of the detox cells that night, and Sydnor had told

Lanham and Freeman nothing about the detox cell before J.S. was moved. Sydnor and

Powell then signed a false statement that stated that they put J.S. in Cell 101 because

they were decontaminating the detox area. Powell later testified that he never

decontaminated a detox cell nor saw such decontamination that night.

Sydnor also told both Lanham and Freeman that they needed to get their stories

straight about the previous shift and “to be on the same page,” because they all “were

in a lot of trouble.” (R. 92, Tr. at 17.) In response, Lanham wrote and signed a false

statement that the detox cells needed to be emptied on the morning of February 14, 2003,

in order to clean them. Lanham further wrote, falsely, that at the end of his shift, he

asked Sydnor and Wright about J.S. and they told him that J.S. was fine. Freeman wrote

that he and Lanham left the booking area and that they passed through 26 Hallway to do

“a secure check for Sgt. Sydnor.” Sydnor also told Guthrie to write a false statement,

but she refused.

Sydnor, Lanham, and Freeman were subsequently arrested and charged with

violating J.S.’s civil rights and false entry. Sydnor pleaded guilty to conspiracy to

violate J.S.’s civil rights in violation of 18 U.S.C. § 242, and conspiracy to commit an

offense against the United States in violation of 18 U.S.C. § 371. The indictment in the

present case against Sydnor was subsequently dismissed, and he cooperated with the

government in its case against Lanham and Freeman. After a jury trial, Freeman and

Lanham were found guilty of conspiracy to violate J.S.’s civil rights in violation of 18

U.S.C. §§ 241 and 242, and making a false entry in violation of 18 U.S.C. § 1519.

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The Probation Office prepared a Presentence Investigation Report (“PSR”) for

each defendant. The government and the defendants objected to the PSRs. The

government argued that the more onerous 2008 Sentencing Guidelines applied rather

than the 2002 Guidelines used in the PSR. The government also argued that a four-level

upward adjustment for Lanham’s role as an organizer or leader should apply pursuant

to U.S.S.G. § 3B1.1.(a). The PSR proposed a two-level downward adjustment to

Freeman’s sentence, based on his minimal involvement, but that adjustment was

objected to by the government and rejected by the district court. The district court

rejected the government’s request for an upward enhancement for Lanham’s leadership

role and refused to apply the 2008 Guidelines. The court sentenced Lanham to 180

months and Freeman to 168 months in prison.

II. ANALYSIS

1. Jury Selection

A. Standard of Review

A district court’s determinations during jury voir dire are reviewed for an abuse

of discretion. See United States v. Guzman, 450 F.3d 627, 629 (6th Cir. 2006), cert.

denied, 549 U.S. 1185 (2007) (citing United States v. Phibbs, 999 F.2d 1053, 1071 (6th

Cir. 1993)). “Only in the case of manifest error will [this Court] overturn a finding of

juror impartiality.” Id. A district court’s determination “regarding the credibility of

jurors’ assurances should receive substantial deference on appeal.” United States v.

Corrado, 304 F.3d 593, 604 (6th Cir. 2002). “[A] trial court’s finding that a juror was

impartial is entitled to a presumption of correctness, rebuttable only upon a showing of

clear and convincing evidence.” Dennis v. Mitchell, 354 F.3d 511, 520 (6th Cir. 2003).

B. Merits

The Sixth Amendment “guarantees an accused the right to be tried ‘by an

impartial jury.’” Guzman, 450 F.3d at 629 (quoting U.S. Const. amend. VI). “When a

juror’s impartiality is at issue, the relevant question is ‘did a juror swear that he could

set aside any opinion he might hold and decide the case on the evidence, and should the

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juror’s protestation of impartiality have been believed.’” Dennis, 354 F.3d at 520

(quoting Patton v. Yount, 467 U.S. 1025, 1036 (1984)).

Defendants argue that the district court abused its discretion by declining to strike

Jurors 56 and 143 for cause because both jurors expressed doubt concerning their ability

to put aside news reports that they had read about the case. Defendants claim that

neither juror was able to provide adequate assurances of impartiality. Juror 56 had read

about the case in the newspaper and stated, “I haven’t completely made up my mind,

but based on what I’ve read, it’s pretty made up.” (R. 90, Tr. at 27.) Juror 56 concluded

by saying, “[R]ight now I’m obviously not totally neutral. But I can certainly try.” (Id.

at 27.)

Juror 143 also admitted to having read news articles about the case and stated

that he had an opinion about the case. (Id. at 38.) He stated, “It’s hard not to read

material like that without . . . making a judgment. On the other hand, I do believe I

could make a judgment here based on what’s presented. I really can’t answer your

question [about my belief in the defendants’ guilty] yes or no, it’s a degree.” (Id. at 38.)

Juror 143 continued that he could “compartmentalize” the knowledge from the article

and stated that he would try his “darndest to do that.” (Id. at 39.) But he also stated,

“It’s kind of a question, though, you can’t really answer definitively.” (Id.) Juror 56

concluded by saying, “[R]ight now I’m obviously not totally neutral. But I can certainly

try.” (Id. at 27.)

Neither Juror 56 nor Juror 143 were able to definitively state that they would be

impartial and decide the case based on the facts presented at trial. Although they both

stated that they would try their best to do so, they both wavered in their ability to be fair

jurors. A “juror [must] give an affirmative promise of impartiality . . . [which is]

believable in light of what the juror has revealed and the context of the case.” Holder

v. Palmer, 588 F.3d 328, 344 (6th Cir. 2009). In Wolfe v. Brigano, “the trial judge

based his findings of [juror] impartiality exclusively upon each juror’s tentative

statements that they would try to decide this case on the evidence presented at trial.”

Wolfe v. Brigano, 232 F.3d 499, 503 (6th Cir. 2000) (emphasis added). This Court held

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that “[s]uch statements, without more, are insufficient.” Id. (citing Goins v. McKeen,

605 F.2d 947, 953 (6th Cir. 1979)). Likewise, the noncommittal statements made by

Jurors 56 and 143 were not a sufficient basis for finding impartiality, and the district

court’s failure to allow a for-cause challenge to these jurors was an abuse of discretion.

Neither juror promised to remain impartial, and both seemed affected by the news

accounts that they had read. The trial court abused its discretion by denying Defendants’

motion to strike these jurors for cause.

Nonetheless, Defendants have failed to demonstrate that any harm resulted from

this abuse of discretion. Jurors 56 and 143 were excluded from the final jury

composition by Defendants’ peremptory challenges. Where a defendant uses a

peremptory challenge to “cure” a district court’s failure to excuse a juror for cause, and

the defendant is “subsequently convicted by a jury on which no biased juror sat, he has

not been deprived of any rule-based or constitutional right.” United States v. Martinez-

Salazar, 528 U.S. 304, 307 (2000); see also McQueen v. Scroggy, 99 F.3d 1302, 1321

(6th Cir. 1996) (“It is insufficient simply to claim that, had there been another

peremptory available, a different juror would have been excluded, and the result might

have been a more favorable jury.”) (overruled on other grounds by In re Abdur’Rahman,

392 F.3d 174 (6th Cir. 2004) (en banc), judgment vacated by Bell v. Abdur’Rahman, 545

U.S. 1151 (2005)). The case which Defendants rely on to support reversal on this

ground, Wolfe v. Brigano, 232 F.3d at 500, is inapposite to this case – the impaneled

jury included four biased jurors who participated in the trial. Here, in contrast, the

biased jurors never participated in the trial and were removed through peremptory

challenges.

Freeman also argues that the court improperly granted the government’s request

to strike Juror 88 for cause. Juror 88 told the district court that she had worked with

Freeman’s attorney for fifteen years. She stated that she worked with him on many

occasions, had a good relationship with him, and would be sympathetic to him. Freeman

argues that the district court’s applied a different standard to the government when it

requested a motion to strike for cause. However, the district court was justifiably

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concerned about the long-term and personal nature of Juror 88's relationship with

defense counsel. This Court has held that “close and ongoing” relationships of jurors

may be grounds for removing a juror for cause. Wolfe, 232 F.3d at 502.

For the foregoing reasons, the Defendants’ have failed to show that there was an

unconstitutional jury error.

2. Limits on Cross Examination

A. Standard of Review

Defendants contest the limitations that the district court imposed on the cross-

examination of Sydnor, including the prohibition of questions concerning certain details

of Sydnor’s cooperation agreement with the government. Trial counsel failed to object

to the limitations on the cross-examination imposed by the district court that appellate

counsel now challenges. Where trial counsel fails to object to a trial error raised on

appeal, the plain error standard applies. See United States v. Hadley, 431 F.3d 484, 498

(6th Cir. 2005). To find that there was plain error, this Court must find that: 1) an error

occurred in the district court; 2) the error was plain, i.e. obvious or clear; 3) the error

affected the defendant’s substantial rights; and 4) this adverse impact seriously affected

the fairness, integrity or public reputation of the judicial proceedings. See United States

v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998).

B. Merits

At trial, the district court stated that, “the parties would be able to certainly ask

questions about the defendant [Sydnor] entering a plea guilty in exchange for hoping to

receive a lesser punishment [but] if it goes much beyond that, it may become

objectionable.” (R. 90, Tr. at 7.) Consequently, the jury was prevented from knowing

the length of Sydnor’s potential sentence, and Defendants’ sentences as well.

Defendants claim that their trial attorneys limited their questioning of Sydnor because

of the court’s order.

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“The Confrontation Clause of the Sixth Amendment guarantees a defendant an

opportunity to impeach the credibility of a witness against him because impeachment is

fundamental to effective cross-examination.” United States v. Holden, 557 F.3d 698,

704 (6th Cir. 2009) (citing Davis v. Alaska, 415 U.S. 308, 315-18 (1974)). Trial courts

“retain great discretion to impose reasonable limits on the cross-examination of

witnesses . . . .” United States v. Davis, 430 F.3d 345, 360 (6th Cir. 2005) (internal

quotations and citations omitted). In determining whether a district court has abused its

discretion in limiting cross-examination, this Court “must decide whether, despite the

limitation of cross-examination, the jury was otherwise in possession of sufficient

information . . . to make a ‘discriminating appraisal’ of a witness’ motives and bias.”

United States v. Kone, 307 F.3d 430, 436 (6th Cir. 2002) (internal citations, quotations,

and alterations omitted).

Because defense counsel failed to object to the limitation at trial, the plain error

standard applies. There is a circuit split on the issue of whether defendants should be

prohibited from asking cooperating witnesses, and former co-conspirators, details about

their sentences and sentencing agreements with the government to expose the witnesses’

bias, and the Sixth Circuit has not considered this issue in a published decision.

Compare United States v. Chandler, 326 F.3d 210, 218-24 (3d Cir. 2003) (holding that

the district court abused its discretion when it limited defendants’ ability to cross-

examine co-conspirators about their sentences) with United States v. Cropp, 127 F.3d

354, 358-59 (4th Cir. 1997) (holding the opposite). Where there are conflicting

authorities, the district court could not have committed plain error. See United States v.

Williams, 53 F.3d 769, 772 (6th Cir. 1995) (“[A] circuit split precludes a finding of clear

error.”). “At a minimum, court of appeals cannot correct an error . . . unless the error is

clear under current law.” United States v. Olano, 507 U.S. 725, 734 (1993). Because

the law on this issue is not clear, the district court did not commit plain error.

Accordingly, the district court’s determination is AFFIRMED.

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3. Sufficiency of the Evidence

A. Standard of Review

In reviewing the sufficiency of the evidence to uphold a conviction, this Court

asks “‘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.’” United States v. Jones, 102 F.3d 804, 807 (6th Cir. 1996) (emphasis in original)

(quoting United States v. Swidan, 888 F.2d 1076, 1080 (6th Cir. 1989)). The “defendant

claiming insufficiency of the evidence bears a very heavy burden.” United States v.

Fekete, 535 F.3d 471, 476 (6th Cir. 2008) (internal quotations and citations omitted).

“If we determine that any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt, then the conviction must be upheld.” Id.

B. Merits

a. Civil Rights Violations

Lanham and Freeman contest their convictions for committing civil rights abuses

in violation of 18 U.S.C. §§ 241, 242. Under 18 U.S.C. § 241, it is a crime when “two

or more persons conspire to injure, oppress, threaten, or intimidate any person . . . in the

free exercise or enjoyment of any right or privilege secured to him by the Constitution

or laws of the United States, or because of his having so exercised the same.” This

statute provides for enhanced penalties if the conspiracy’s “acts include kidnapping or

. . . aggravated sexual abuse . . . .” 18 U.S.C. § 241. Here, the indictment charged

Lanham and Freeman with conspiring to injure J.S. and depriving him of his rights not

to be deprived of liberty without due process. The indictment further charged that the

conspiracy included sexual acts. “To obtain a conviction for conspiracy to violate civil

rights under § 241, the government must prove that [defendants] knowingly agreed with

another person to injure [the victim] in the exercise of a right guaranteed under the

Constitution.” United States v. Epley, 52 F.3d 571, 575-76 (6th Cir. 1995). The

government also must prove beyond a reasonable doubt that there was specific intent to

commit the deprivation. Id.

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Under 18 U.S.C. § 242, “[w]hoever, under color of any law . . . willfully subjects

any person . . . to the deprivation of any rights, privileges, or immunities secured or

protected by the Constitution or law of the United States” has committed a federal crime.

If “bodily injury results from the acts,” the defendant shall be fined under this title or

imprisoned not more than ten years, or both. Id. “[P]rison officials have a duty . . . to

protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511

U.S. 825, 833 (1994) (citation omitted). Prison officials are “not free to let the state of

nature take its course [in a prison].” Id. “Prison conditions may be ‘restrictive and even

harsh,’ but gratuitously allowing the beating or rape of one prisoner by another serves

no ‘legitimate penological objective.’” Id. (internal citations, quotations, and alterations

omitted). A prison official can be found guilty where “the official knows of and

disregards an excessive risk to inmate health or safety; the official must both be aware

of facts from which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.” Ford v. County of Grand Traverse, 535

F.3d 483, 495 (6th Cir. 2008) (quoting Farmer, 511 U.S. at 837)).

Lanham argues that J.S.’s sexual assault was not reasonably foreseeable and that

there was insufficient evidence to support his conviction. However, the evidence

established that Lanham joined Sydnor in mocking J.S. about his slight appearance, and

he was present when Sydnor said that J.S. would make a “good girlfriend.” When

Sydnor stated that they needed to teach J.S. a lesson, Lanham quickly volunteered that

he knew a prisoner in Cell 101. The evidence showed that Lanham talked to Inmate

Wright, within earshot of other inmates, and explained that the guards would be bringing

a new prisoner down and that they wanted the prisoners to “f-ck with” him. The

evidence also showed that the inmates cheered at this news when Lanham was present,

and Lanham knew of 26 Hallway’s and Zipp’s reputations.

Additionally, there was evidence that pretrial detainees were normally housed

in the detox cells, not in the general population. Lanham stated that J.S. should have

been in a detox cell and admitted that he asked Wright to teach J.S. a lesson. Finally, the

evidence established that Lanham worked to cover up his actions after the fact. It is

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immaterial that he was not at Cell 101 when J.S. was brought there because a conspirator

“need not have personally performed the deed for which he is being held liable. A

conspirator can be held criminally liable for the actions of his co-conspirators committed

during and in furtherance of the conspiracy.” United States v. Gresser, 935 F.2d 96, 101

(6th Cir. 1991) (citation omitted). Taken together, in the light most favorable to the

prosecution, this evidence was adequate for a rational fact-finder to find that Lanham

violated both 18 U.S.C. § 241 and 18 U.S.C. § 242. He acted with deliberate

indifference and in furtherance of the conspiracy to place J.S. in harm.

Freeman also argues that the evidence was insufficient to support his conviction.

Freeman taunted J.S., joined Lanham in taking action to solicit inmates to harm J.S.,

failed to check on J.S. throughout the five hours he was in Cell 101, and then joined in

the cover up of his assault. Sydnor testified that he told both Lanham and Freeman of

his plan to scare J.S., and that Freeman did not object to the plan. Officer Guthrie

testified that Freeman was present during the discussion of the plan to scare J.S.

Freeman went with Lanham to Cell 101 to solicit Inmate Wright’s assistance in scaring

J.S. “Although mere presence at the crime scene is insufficient to show participation,

a defendant’s participation in the conspiracy’s common purpose and plan may be

inferred from the defendant’s actions and reactions to the circumstances.” United States

v. Salgado, 250 F.3d 438, 447 (6th Cir. 2001), cert. denied, 534 U.S. 936 (2001) (citation

omitted).

Wright testified that while Lanham told him that they wanted him to “f-ck with”

J.S., Freeman was standing at the door “agreeing with Lanham, shaking his head yes.”

The jury could reasonably have found that Freeman knew and intended to join the

conspiracy to place J.S. in a general population cell to “scare” him. Freeman also failed

to protect or assist J.S. after learning of the plan. Freeman testified that he had a duty

to protect J.S., and his failure to do so could reasonably have been interpreted by the jury

as acquiescence in the conspiracy. Viewing the evidence in the light most favorable to

the prosecution, a rational fact-finder could find that Freeman participated in the

conspiracy and violated the relevant statutes.

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Furthermore, the record provides evidence that there was an objective risk of

harm for someone like J.S. Although Freeman argues that Sydnor is the only person

who knew that J.S. would be at risk if placed in the general population cells, Guthrie,

Powell, and Nurse Cook all testified that J.S.’s placement in 26 Hallway was

inappropriate. Guthrie testified that she was confident that J.S. would be assaulted;

Powell testified about Victor Zipp’s tendency to walk naked in the cell; and Nurse Cook

testified that it was almost “animalistic” in 26 Hallway. A reasonable fact-finder could

conclude that Freeman was aware of the objective risk of harm in placing J.S. in 26

Hallway.

Defendants took affirmative steps to place J.S. in harm and thus violated both

statutes. Accordingly, their convictions are AFFIRMED.

b. The Cover-up

Lanham and Freeman also challenge their convictions for unlawfully falsifying

their records in violation of 18 U.S.C. § 1519, which states “[w]hoever 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 . . . shall be fined under this title, imprisoned

not more than 20 years, or both.” Lanham argues that his incident report was not false

because his supervisor, Sydnor, testified that the detox cells were in fact contaminated

that night, and that there is a difference between a false statement and an omission. He

claims that his report simply omitted information rather than affirmatively made false

statements.

Sydnor testified that the detox cells “had an odor coming from them,” but further

stated that the odor would not “by itself” be a justification for moving J.S., and that the

other inmate in the same detox cell was not moved that night. (R. 92, Tr. at 15.) This

contradicted Lanham’s written report, which claims that Sydnor “stated that he was

going to start emptying our detox to get them cleaned.” (Appellee’s App. at 33.)

Lanham also wrote that he went to 26 Hallway to speak to Wright about being

Nos. 08-6504/6506; 09-5094/5095 United States v. Lanham, et al. Page 16

reclassified. The evidence showed that Lanham went to 26 Hallway to tell Wright to “f-

ck with” J.S. Lanham himself admitted on cross-examination that his report was

“inaccurate.” (R. 87, Tr. at 19.) Sydnor testified that he told Lanham and Freeman that

they should report that the detox cells needed to be decontaminated after learning that

J.S. was raped in Cell 101. This is sufficient evidence for a rational fact-finder to find

that Lanham intentionally falsified his reports.

Freeman argues that his report contained omissions of fact rather than affirmative

lies. Freeman wrote that he and Lanham went to some prisoners in 26 Hallway and then

returned “to Class D . . . [and] went to 26 Hall [and] did a secure check for Sgt. Sydnor.”

(Appellee’s App. at 32.) These statements were false. In fact, Freeman returned to

booking after talking with Wright, rather than proceeding immediately to Class D as

stated in the written report. Material omissions of fact can be interpreted as an attempt

to “cover up” or “conceal” information. A reasonable fact-finder could conclude that

Freeman falsified his report.

Lanham also argues that there had to be an ongoing or imminent federal

investigation at the time the reports were written to meet the requirements of the statute.

The language in 18 U.S.C. § 1519 clearly states that the falsification could be done “in

relation to or contemplation of any” investigation or matter within United States

jurisdiction. The conspiracy to harm J.S. was within the jurisdiction of the United

States, and the falsification was presumably done in contemplation of an investigation

that might occur. A reasonable fact-finder could find that Sydnor warned Lanham and

Freeman that they had to get their stories straight in anticipation of an investigation of

J.S.’s rape.

For the aforementioned reasons, the convictions for falsification of records are

AFFIRMED.

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c. Sexual Assault Enhancement under 18 U.S.C. §§ 241, 242

Defendants were charged under 18 U.S.C. § 241 for conspiring to violate J.S.’s

civil rights. The indictment charged that the acts in furtherance of the conspiracy

included aggravated sexual abuse. The statute establishes a ten year maximum sentence

for those convicted under the statute, and includes an increased penalty of “any term of

years or for life,” if the conspiracy included an act of “aggravated sexual abuse.”

Because the question of whether an act of sexual abuse occurred is a factual issue that

“increases the penalty” for the violation of 18 U.S.C. § 241 “beyond the prescribed

statutory maximum,” the question was required to be “submitted to a jury, and proved

beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The

district court properly submitted the question of whether aggravated sexual abuse

occurred to the jury, adopting the definition of aggravated sexual abuse found in 18

U.S.C. § 2241 (1998).

Defendants’ argument that their conduct had to meet the jurisdictional

requirements of aggravated sexual abuse in 18 U.S.C. § 2241, which require that the

abuse occurred in a federal prison, is without merit. They were not charged under that

statute, and the district court was merely giving content to the term “aggravated sexual

assault” by using the definition in 18 U.S.C. § 2241. The jurisdictional requirements of

18 U.S.C. § 2241 did not apply because they were not prosecuted under this statute.

Accordingly, the sexual assault enhancement is AFFIRMED.

4. Mitigating Role Adjustment to Freeman’s Sentence

This Court reviews a “district court’s denial of a mitigating role adjustment to

a defendant’s offense level for clear error.” Salgado, 250 F.3d at 458. “To be clearly

erroneous, . . . a decision must strike [this Court] as more than just maybe or probably

wrong; it must strike us as wrong with the force a five-week-old, unrefrigerated dead

fish.” United States v. Perry, 908 F.2d 56, 58 (6th Cir. 1990) (internal citations,

quotations, and alterations omitted).

Nos. 08-6504/6506; 09-5094/5095 United States v. Lanham, et al. Page 18

U.S.S.G. § 3B1.2(b) directs courts to reduce a defendant’s offense level by two

levels where defendant “was a minor participant in any criminal activity.” This Court

has held, “[t]he ‘minor participant’ reduction is available only to a party who is ‘less

culpable than most other participants’ and ‘substantially less culpable than the average

participant.’” United States v. Lloyd, 10 F.3d 1197, 1220 (6th Cir. 1993) (quoting

U.S.S.G. § 3B1.2, cmt. n.3). The district court rejected the role reduction for Freeman,

stating: “While he did not have as much of a speaking role, his activities, first his

knowledge of what was going on and his participation in the agreement of defendants

was substantial. He added weight to Mr. Lanham’s statements and, as indicated during

trial, he indicated agreement with the activities that were being requested by Mr.

Lanham. And under those circumstances, the Court believes it would be improper to

reduce his role as a minor or minimal participant.” (R. 142, Tr. at 9.) Freeman’s actions

were deliberately indifferent, and after the rape he was an active participant in the cover-

up of the crime. The district court’s findings were not clearly erroneous. Accordingly,

Freeman’s sentence is AFFIRMED.

5. Freeman’s Brady Motion

Under Brady v. Maryland, 373 U.S. 83 (1963), the government is required “to

disclose exculpatory and impeachment evidence that is ‘material either to guilt or to

punishment.’” Doan v. Carter, 548 F.3d 449, 459 (6th Cir. 2008) (quoting Strickler v.

Greene, 527 U.S. 263, 280 (1999)). “A Brady violation includes three elements: (1)

the evidence must be favorable to the accused, either because it is exculpatory, or

because it is impeaching; (2) the evidence must have been suppressed by the State, either

willfully or inadvertently; and (3) prejudice must have ensued.” Id. Evidence is

“material only if there is a reasonable probability that, had the evidence been disclosed

to the defense, the result of proceeding would have been different.” Id.(internal citation

and quotations omitted).

Freeman argues that the government “did not disclose to [the] defense that

Chandler had told them that the video depicted Shawn Freeman at a cell other than Cell

101,” and the “FBI was aware of this information and failed to disclose it.” (Appellant

Nos. 08-6504/6506; 09-5094/5095 United States v. Lanham, et al. Page 19

Freeman’s Second Br. at 57.) This evidence presumably would have shown that

Freeman was not present when Lanham approached Wright about J.S. Assuming,

arguendo, that this evidence was deliberately or inadvertently withheld, Freeman is

unable to show that he was prejudiced by such withholding.

Inmate Wright testified that Freeman was with Lanham, and that Freeman

nodded his head in agreement with Lanham’s statements. Freeman himself corroborated

Wright’s testimony that he shook his head while Lanham asked Wright to “f-ck with”

J.S. Whether Freeman was standing in Cell 98 or 99, or 96 as Chandler originally stated,

is immaterial when there is significant corroboration of Wright’s testimony that Freeman

was there nodding his head when Lanham was telling Wright to “f-ck with” J.S.

Accordingly, there was no prejudice, and the district court properly held that no Brady

violation occurred. As such, the district court’s determination is AFFIRMED.

6. Applicable Sentencing Guidelines

The sentencing court is to apply the version of the Sentencing Guidelines in

effect at the time of sentencing unless it “determines that use of the Guidelines Manual

in effect on the date that the defendant is sentenced would violate the ex post facto

clause.” U.S.S.G. § 1B1.11(b)(1).

Defendants committed their offenses in 2003 when the 2002 Guidelines were in

effect at the time of the crime. The 2008 Guidelines, in effect at time of sentencing,

establish a higher base offense level for the offense of Criminal Sexual Abuse. The

government argues that using the 2008 advisory Guidelines, which established a more

onerous offense level than that in effect on the date of crime, would not violate the Ex

Post Facto Clause under the new post-Booker advisory Guidelines regime. The Ex Post

Facto Clause “bars application of a law that changes the punishment, and inflicts a

greater punishment, than the law annexed to the crime, when committed.” Johnson v.

United States, 529 U.S. 694, 699 (2000) (internal citations and quotations omitted).

The Supreme Court has interpreted the Ex Post Facto Clause to bar retroactive

application of a revised version of a state’s sentencing guidelines, Miller v. Florida, 482

Nos. 08-6504/6506; 09-5094/5095 United States v. Lanham, et al. Page 20

U.S. 423 (1987), and this Court applied that decision to the federal Sentencing

Guidelines, see United States v. Kussmaul, 987 F.2d 345, 351-52 (6th Cir. 1993). The

government argues that this legal precedent no longer applies because, post-Booker, the

Sentencing Guidelines are advisory rather than mandatory. Although this Court has not

directly determined whether the now advisory Guidelines regime implicates Ex Post

Facto concerns, there is some case law in support of holding that it does. This Court has

acknowledged that “[t]he presence of discretion does not displace the protections of the

Ex Post Facto clause.” Michael v. Ghee, 498 F.3d 372, 382 (6th Cir. 2007). When

evaluating the reasonableness of a sentence, the reviewing court must consider the

applicable Guidelines range and failure to do so is “reversible error.” See United States

v. Kosinski, 480 F.3d 769, 779 (6th Cir. 2007). The Sentencing Guidelines are still

relevant and are a starting point for determining a defendant’s sentence. Only when the

Guidelines range is unable to meet the goals of the Sentencing Guidelines is a sentencing

court expected to vary from the Guidelines sentence. 18 U.S.C. § 3553(a). As a result,

the advisory nature of Guidelines does not completely eliminate Ex Post Facto concerns.

Ironically, the government is presumably interested in having the 2008 Guidelines apply

because it would impact Defendants’ sentence, which demonstrates the Ex Post Facto

concerns that come into play when retroactively applying the 2008 Guidelines.

Accordingly, the district court’s determination is AFFIRMED.

7. Leader or Organizer Enhancement to Lanham’s Sentence

When a “defendant was an organizer or leader of a criminal activity that involved

five or more participants or was otherwise extensive,” the offense level is increased by

four levels. U.S.S.G. § 3B1.1(a). The Sentencing Guidelines direct the court to consider

facts such as “the exercise of decision making authority, the nature of participation in

the commission of the offense, the recruitment of accomplices, the claimed right to a

larger share of the fruits of the crime, the degree of participation in planning or

organizing the offense, the nature and scope of the illegal activity, and the degree of

control and authority exercised over others.” U.S.S.G. § 3B1.1, cmt n.4.

Nos. 08-6504/6506; 09-5094/5095 United States v. Lanham, et al. Page 21

The district court stated that it would not apply the enhancement because

“[u]nder the facts of this particular case, it would not appear that the initial idea for the

punishment of victim was Mr. Lanham’s idea.” (R. 143, Tr. at 10.) The government

argues that the district court committed legal error in overemphasizing the fact that

Lanham did not originate the conspiracy. However, this fact is significant in assessing

his “exercise of decision making authority,”the “nature of [his] participation in the

commission of the offense,” “the degree of participation in planning or organizing the

offense,” and “the degree of control and authority exercised over others.” U.S.S.G.

§ 3B1.1, cmt n.4.

The district court stated that “looking at all participants in the case and the

instructions that were given, the Court believes that while it is a close question, the Court

will not apply an adjustment for role in the offense based on the facts that are presented.”

(R. 143, Tr. at 10-11.) The district court did not commit legal error in holding that

Lanham did not act as an organizer. Lanham exercised limited decision-making

authority, did not originate the plan, did not actively participate in bringing J.S. to Cell

101, and did not exercise control over the other jailers in ensuring that the plan was

exercised. Under these facts, the district court’s determination was not a legal error and

the decision to deny the enhancement is AFFIRMED.

III. CONCLUSION

For the foregoing reasons, Defendants’ convictions and sentences are

AFFIRMED.