United States v. Shawn Shaw

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-2860

_____________

UNITED STATES OF AMERICA

v.

SHAWN D. SHAW,

Appellant

______________

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

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Argued: September 26, 2017

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Before: SMITH, Chief Judge, McKEE and RESTREPO,

Circuit Judges.

(Filed: May 30, 2018)

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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

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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.

2

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.

1

The victim is herein identified only by her initials.

2

E.S.’s cellmate testified that she remained asleep.

3

with the weight of his body. Shaw proceeded to engage in

sexual intercourse with E.S. who was unable to move and

“felt like [she] couldn’t breathe.” App. 404.3

E.S. did not immediately report the incident, but told a

male inmate (via hand signals), her mother and her attorney.

The male inmate reported the incident to the jail. When

confronted, E.S. formally reported the sexual assault. She

was examined by a Sexual Assault Nurse Examiner, and was

found to have semen on her cervix. The Government later

extracted a DNA mixture. An expert for the Government

testified at trial that it was “approximately 28.9 million times

more likely in the African American population” that E.S. and

Shaw were the sources of the mixture, than if E.S. and a

“randomly selected unrelated individual” were the sources.

App. 610. Shaw is African American.

The Government also introduced electronic records of

the cell doors at ECCF. The records established that E.S.’s

cell door was opened on the night of the incident at 2:43:41

a.m. and closed at 2:50:39 a.m. The computer that opened the

door was “TS 04” and Shaw was logged into TS 04 at that

time. No one else logged into TS 04 during Shaw’s overnight

shift.

Jail investigators also retrieved surveillance videos.

Although there was no video of either E.S.’s cell or the TS 04

work station, the videos did show Shaw going on break and

returning to the women’s unit slightly before the sexual

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

assault. The surveillance videos refuted Shaw’s intimation to

investigators that he was on break during the incident.

There was, however, a complication in interpreting the

video evidence: the surveillance camera clocks were not

synchronized with one another or with the clock associated

with the cell door records. To synchronize the time stamps ex

post, an ECCF maintenance information technician, Delfin

Neves, used “arithmetic.” App. 153. Neves calculated the

“difference” between each surveillance camera clock and the

clock for the facility systems. App. 152.4 He recorded the

results in a chart listing the “drift” for each surveillance

camera clock. App. 131.5

Using Neves’ chart, an ECCF investigator, Maria

Theodoridis, adjusted the time stamps on the videos showing

Shaw leaving and returning from break. After her

corrections, the video evidence showed that Shaw left for

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.

5

break at 2:31:06 a.m. and returned at 2:37:46 a.m.—a few

minutes before E.S.’s cell door was opened at 2:43:41 a.m.6

On December 31, 2010, Shaw gave a statement to

investigators at the Essex County prosecutor’s office. Shaw

denied making sexual advances to E.S., repeatedly and

emphatically denied opening her cell door, and repeatedly

denied even entering her cell. Shaw told the investigators that

he left the women’s unit on his break “at like two thirty, two

forty” for “about twenty minutes” and returned “maybe

something about . . . three o’clock.” SA 5.

At trial, Shaw testified consistent with his prior

statement. He denied making sexual comments to E.S.,

denied opening E.S.’s cell door, and denied having sexual

intercourse with E.S. Shaw testified that he was on break

“[n]o more than 20 minutes,” but also agreed that it was more

accurate to say that he was “only gone six or seven minutes.”

App. 764. Shaw also testified that male and female inmates

were known to be engaging in sexual intercourse in the ECCF

gym.

The jury convicted Shaw of deprivation of civil rights

through aggravated sexual abuse, 18 U.S.C. § 242, and

obstruction of justice, 18 U.S.C. § 1512(b)(3).7 The District

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.

6

Court sentenced Shaw to 25 years’ incarceration and 5 years’

supervised release. This represented a downward variance

from the Sentencing Guideline range of life. This timely

appeal followed.8

II

We begin by addressing Shaw’s claims related to his

conviction for deprivation of civil rights by aggravated sexual

abuse, 18 U.S.C. § 242. Shaw challenges (1) the District

Court’s jury instructions and (2) the sufficiency of the

evidence. We will describe the statute and then address each

claim in turn.

A

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. United States v. Lanier,

520 U.S. 259, 264 & n.1 (1997). “Section 242 makes it a

crime for a state official to act ‘willfully’ and under color of

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.

7

law to deprive a person of rights protected by the

Constitution.” Hope v. Pelzer, 536 U.S. 730, 739 (2002); see

also Lanier, 520 U.S. at 264. The statute is “unusual for its

application in so many varied circumstances.” Koon v.

United States, 518 U.S. 81, 101 (1996). Among these,

“[t]here are a multitude of cases in which prison

administrators have been prosecuted under [Section 242].”

United States v. Guadalupe, 402 F.3d 409, 414 (3d Cir.

2005).

As is relevant here, Section 242 sets forth three

statutory maximum sentences. First, the default maximum

sentence is “imprison[ment] not more than one year.”

18 U.S.C. § 242. Second, “if bodily injury results . . . or if

such acts include the use, attempted use, or threatened use of

a dangerous weapon, explosives, or fire” the statutory

maximum is “imprison[ment] not more than ten years.” Id.

Third, “if death results from the acts committed in violation

of this section or if such acts include kidnapping or an attempt

to kidnap, aggravated sexual abuse, or an attempt to commit

aggravated sexual abuse, or an attempt to kill” the statutory

maximum is life imprisonment or death.9 Id. (emphasis

added); see also Violent Crime Control and Law Enforcement

Act of 1994, Pub. L. No. 103-322 § 320103 (1994) (enacting,

inter alia, increased statutory maximum sentence for

aggravated sexual abuse or its attempt).

9

Cf. Kennedy v. Louisiana, 554 U.S. 407, 413 (2008)

(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).

8

In the case before us, the Government charged Shaw

with both the base and aggravated violations of Section 242.

As to the base offense, Shaw was charged with depriving E.S.

of due process through unwanted sexual contact so egregious

as to shock the conscience. See Lanier, 520 U.S. at 261;

United States v. Giordano, 442 F.3d 30, 47 (2d Cir. 2006).

As to the aggravated offense, the Government charged Shaw

with, inter alia, a violation of civil rights through “aggravated

sexual abuse.” App. 20.

Section 242, notably, does not define the term

“aggravated sexual abuse.” 18 U.S.C. § 242. While this

Court has not yet addressed the issue, a number of our sister

Circuits have defined the term by reference to the federal

aggravated sexual abuse statute, 18 U.S.C. § 2241, excluding

its jurisdictional requirements. See Cates v. United States,

882 F.3d 731, 736 (7th Cir. 2018); United States v. Lanham,

617 F.3d 873, 888 (6th Cir. 2010); United States v. Holly, 488

F.3d 1298, 1301 (10th Cir. 2007); United States v. Simmons,

470 F.3d 1115, 1120 (5th Cir. 2006). Likewise, the

Government used this definition in its indictment of Shaw,

and the parties agree on appeal that this was appropriate. As

such, we will employ this approach, defining aggravated

sexual abuse for the purposes of Section 242 by reference to

18 U.S.C. § 2241(a).

2

Aggravated sexual abuse under Section 2241(a)

“prohibits forced sexual acts against another person.”

Lockhart v. United States, 136 S. Ct. 958, 964 n.1 (2016)

(quotation marks omitted). The statute is violated where the

9

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., Cates, 882 F.3d at 736; United States v. H.B., 695

F.3d 931, 936 (9th Cir. 2012); United States v. Crowley, 318

F.3d 401, 406 (2d Cir. 2003); United States v. Lauck, 905

F.2d 15, 18 (2d Cir. 1990). 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). Cates, 882 F.3d at 736. Sexual abuse

occurs, in relevant part, where the defendant knowingly

“causes another person to engage in a sexual act by

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.” United States v. Dahl,

833 F.3d 345, 355 (3d Cir. 2016) (citing 18 U.S.C.

§ 2246(2)(A)-(C)); see also id. (citing 18 U.S.C.

§ 2246(2)(D)); United States v. Hayward, 359 F.3d 631, 641

(3d Cir. 2004) (observing that “‘sexual act’ . . . requires skin-

to-skin touching”).

10

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 Congress’s 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.” Cates, 882 F.3d at 737

(emphasis in original); see also H.B. 695 F.3d at 936. In

contrast, sexual abuse “encompasses the use of any [other]

kind of threat or other fear-inducing coercion to overcome the

victim’s will.” Cates, 882 F.3d at 737. “Threats or fear-

inducing coercion of a lesser nature can support a conviction

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 of 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).

11

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

H.B., 695 F.3d at 936 (quoting H. Rep. No. 99-594 at 14

n.54a); see also United States v. Johnson, 492 F.3d 254, 255

(4th Cir. 2007); United States v. Fire Thunder, 908 F.2d 272,

274 (8th Cir. 1990); Lauck, 905 F.2d at 17.

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., Johnson, 492 F.3d at 258, 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”

12

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. Cates, 882 F.3d at

737; see also Br. for Appellee 24 (agreeing with “the

unremarkable proposition that aggravated sexual assault

‘requires a showing of actual force’”) (quoting H.B., 695 F.3d

at 936 (interpreting Section 2241(a)(1))).

Moreover, it is not a solution to construe the House

Report’s 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 Report’s definition would

collapse the distinction between Section 2241(a)(2) and

Section 2242(1).

Indeed, the Government at no point defends the House

Report’s third definition. Instead, the Government asks us to

adopt the second portion of the House Report’s 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 Report’s

definition. See Br. for Appellee 17 (quoting Lauck, 905 F.2d

13

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 . . . .”

905 F.2d at 17 (alterations in original) (quoting H. Rep. No.

99-594 at 14 n.54a); see also United States v. Archdale, 229

F.3d 861, 868 (9th Cir. 2000) (same); United States v. Fulton,

987 F.2d 631, 633 (9th Cir. 1993) (same). We agree with this

approach and will adopt it for the analysis that follows.12

B

We turn now to the District Court’s 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 court’s jury instruction, “[w]e exercise

plenary review in determining ‘whether the jury instructions

stated the proper legal standard.’” United States v.

Khorozian, 333 F.3d 498, 507-08 (3d Cir. 2003) (citation

omitted). We review the “wording of instructions for abuse

of discretion.” Gov’t of Virgin Islands v. Mills, 821 F.3d 448,

465 (3d Cir. 2016). “We must reverse if ‘the instruction was

capable of confusing and thereby misleading the jury.’”

United States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995)

(en banc); see also United States v. Tykarsky, 446 F.3d 458,

477 (3d Cir. 2006). In reviewing the charge, “we consider the

12

We need not reach the first portion of the House

Report’s 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.

14

totality of the instructions and not a particular sentence or

paragraph in isolation.” Khorozian, 333 F.3d at 508 (citation

omitted).

1

In Shaw’s 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).

15

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 defendant’s

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

16

Section 2241(a)(1).13 Specifically, Shaw argues that this

“disparit[ies]” instruction was strikingly similar to the District

Court’s 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.

Zehrbach, 47 F.3d at 1264.

Indeed, the Seventh Circuit recently rejected a similar

disparities instruction in United States v. Cates, 882 F.3d at

737. 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

13

This opinion should not be read to approve of any

portion of the jury instructions not challenged on appeal.

17

defendant and [victim].” Id. (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.” Holly, 488 F.3d at 1301.

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 United States v. Bordeaux,

997 F.2d 419, 421 (8th Cir. 1993); see also United States v.

Demarrias, 876 F.2d 674, 678 (8th Cir. 1989); Simmons, 470

F.3d at 1121. Likewise, at oral argument the Government

defended the District Court’s disparities instruction on the

18

ground that disparities are relevant to physical restraint.14

The Holly instruction, however, contained no such link. Nor

did the disparities instruction in Shaw’s case. Instead, the

District Court’s disparities jury instruction could have misled

the jury into “conflat[ing]” non-consent or coerced consent

with actual force, undermining Congress’s graded approach.

Cates, 882 F.3d at 737.

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.” United

States v. Sussman, 709 F.3d 155, 175 (3d Cir. 2013) (citation

omitted). Read in their totality, the District Court’s jury

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 (“I’m

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 don’t 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 officer’s threat to revoke inmate’s visitation and

telephone privileges “would not entail the requisite force to

bring this to an aggravated sexual abuse”).

19

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 United

States v. McGill, 964 F.2d 222, 236 (3d Cir. 1992).

Although the District Court’s disparities instruction

could have misled the jury, other portions of the charge

adequately distinguished between the lesser and aggravated

offenses. See United States v. Berrios, 676 F.3d 118, 138 (3d

Cir. 2012). 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.

20

Thus, upon consideration of the charge as a whole, the

instructional error does not warrant overturning the verdict.

See Mills, 821 F.3d at 467.

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.” United States v.

Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (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.” Jackson v. Virginia, 443 U.S.

307, 318-19 (1979) (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

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.

21

use of such physical force as is sufficient to overcome,

restrain, or injure a person . . . .” Lauck, 905 F.2d at 17

(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] couldn’t breathe,” App. 404. Therefore,

Shaw’s sufficiency of the evidence claim fails.

III

We now address Shaw’s 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

22

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 United

States v. Bailey, 840 F.3d 99, 124 (3d Cir. 2016). “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 Zehrbach, 47 F.3d at

1265). Any error in Shaw’s 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. United States v. Christie, 624 F.3d 558,

571 (3d Cir. 2010). 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 United States v. Hoffecker, 530 F.3d

137, 170 (3d Cir. 2008). Under Rule 701, lay opinion

testimony must be “(a) rationally based on the witness’s

perception; (b) helpful to clearly understanding the witness’s

testimony or to determining a fact in issue; and (c) not based

on scientific, technical, or other specialized knowledge within

23

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].”

Hirst v. Inverness Hotel Corp., 544 F.3d 221, 227 (3d Cir.

2008).

Citing Rule 701(c), Shaw challenges the District

Court’s 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 United States v. Georgiou, 777

F.3d 125, 144 (3d Cir. 2015) (holding that comparing stock

quantities and prices did not require specialized knowledge).

Thus, the District Court did not abuse its discretion in

admitting Neves’s 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 United States v. Cotton, 535 U.S. 625, 631

(2002).16

16

The plain error test requires (1) an error; (2) that is

“clear or obvious” and (3) “affected the defendant’s

substantial rights, which in the ordinary case means he or she

must ‘show a reasonable probability that, but for the error,’

24

In assessing a constitutional speedy trial claim, we

consider the “[l]ength of delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to the

defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972).

“None of these factors is . . . ‘necessary or sufficient’ . . . and

the factors ‘must be considered together with such other

circumstances as may be relevant.’” United States v. Battis,

589 F.3d 673, 678 (3d Cir. 2009) (quoting Barker, 407 U.S. at

533).

The first factor, the length of the delay, “trigger[s]” the

speedy trial analysis. Doggett v. United States, 505 U.S. 647,

651 (1992) (citing Barker, 407 U.S. at 530-31); see also

Hakeem v. Beyer, 990 F.2d 750, 760 (3d Cir. 1993) (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 Shaw’s case, the Government concedes that a

delay of twenty-seven months was sufficient to trigger an

analysis of the remaining Barker factors.

the outcome of the proceeding would have been different.”

Molina-Martinez v. United States, 136 S. Ct. 1338, 1343

(2016) (quoting United States v. Dominguez Benitez, 542 U.S.

74, 76, 82 (2004)). 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 United States v. Olano, 507 U.S.

725, 736 (1993)).

25

But rather than argue the Barker factors, Shaw merely

contends that prejudice can be presumed from the length of

the delay. See Doggett, 505 U.S. at 655 (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 Shaw’s 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.” Id. at 656; see also United States v.

Dent, 149 F.3d 180, 185 (3d Cir. 1998). Thus, there is no

clear error.17

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 Kost v.

Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993); 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.

26

IV

The judgment of the District Court will be affirmed.

27