Defendant Charged with Deprivation of Civil Rights Has Four Counts Rev'd Based on Erroneous Instruction
U.S. v. Holly, --- F.3d ----, 2007 WL 1677918 (10th Cir. June 12, 2007).
Defendant was a county sheriff convicted of a number of sexual offenses relating to abuse of jail inmates and employees, and false statement offenses arising out of investigation of those charges. He appealed his conviction of only the 5 felony aggravated sexual abuse under color of law charges.
The agg sexual abuse incorporated into the “color of law” offense is the federal 18 U.S.C. § 2241. While the district court correctly defined force as implied from a disparity in size or coercive power between the defendant and the victim (the 10th’s reasoning borrowing from the guideline definition of force–boy those guidelines are SO multi-purpose), it erroneously instructed the jury on the definition of fear, the alternative theory of liability. By instructing the jury that the fear element is satisfied by fear of “some bodily harm,” the district court eliminated the heightened degree of fear required to support a conviction for aggravated sexual abuse.
Harmless error review applies because even though there was no way of knowing which theory the jury convicted on–the improper fear instruction or the proper force instruction–because fear was a lawful theory of conviction, the Sup. Ct. Stromberg decision does not otherwise apply to bar harmless error review. The 10th characterizes the case as an instructional error on an element of the offense. The 10th asks, then, whether absent the instructional error, the jury would nevertheless have convicted Defendant of aggravated sexual abuse, premised on the victims' fear of death, serious bodily injury, or kidnapping. Defendant’s convictions would be reversed if harmless error review reveals those convictions cannot be sustained on the basis of the fear theory for which the jury received erroneous instructions. As to the victim who resisted the Defendant’s advances, the 10th finds the evidence of fear of great bodily harm, etc. overwhelming (huh? I don’t) and so error is harmless on that count. The 10th reverses the other 4 counts because the error is not harmless–no-to-slim evidence.
Kelly dissents and would reverse all 5 of the counts, disagreeing that harmless error review applies. The error was not merely instructional; rather, the district court instructed the jury it could convict Defendant on a ground that was legally insufficient–it was told it could convict Defendant of deprivation of rights so long as it found him guilty of sexual abuse instead of aggravated sexual abuse. (The deprivation of rights statute, 18 USC § 242, applies not to sexual abuse, but to aggravated sexual abuse). In short, this was a legal error and harmless error review does not apply.
Defendant was a county sheriff convicted of a number of sexual offenses relating to abuse of jail inmates and employees, and false statement offenses arising out of investigation of those charges. He appealed his conviction of only the 5 felony aggravated sexual abuse under color of law charges.
The agg sexual abuse incorporated into the “color of law” offense is the federal 18 U.S.C. § 2241. While the district court correctly defined force as implied from a disparity in size or coercive power between the defendant and the victim (the 10th’s reasoning borrowing from the guideline definition of force–boy those guidelines are SO multi-purpose), it erroneously instructed the jury on the definition of fear, the alternative theory of liability. By instructing the jury that the fear element is satisfied by fear of “some bodily harm,” the district court eliminated the heightened degree of fear required to support a conviction for aggravated sexual abuse.
Harmless error review applies because even though there was no way of knowing which theory the jury convicted on–the improper fear instruction or the proper force instruction–because fear was a lawful theory of conviction, the Sup. Ct. Stromberg decision does not otherwise apply to bar harmless error review. The 10th characterizes the case as an instructional error on an element of the offense. The 10th asks, then, whether absent the instructional error, the jury would nevertheless have convicted Defendant of aggravated sexual abuse, premised on the victims' fear of death, serious bodily injury, or kidnapping. Defendant’s convictions would be reversed if harmless error review reveals those convictions cannot be sustained on the basis of the fear theory for which the jury received erroneous instructions. As to the victim who resisted the Defendant’s advances, the 10th finds the evidence of fear of great bodily harm, etc. overwhelming (huh? I don’t) and so error is harmless on that count. The 10th reverses the other 4 counts because the error is not harmless–no-to-slim evidence.
Kelly dissents and would reverse all 5 of the counts, disagreeing that harmless error review applies. The error was not merely instructional; rather, the district court instructed the jury it could convict Defendant on a ground that was legally insufficient–it was told it could convict Defendant of deprivation of rights so long as it found him guilty of sexual abuse instead of aggravated sexual abuse. (The deprivation of rights statute, 18 USC § 242, applies not to sexual abuse, but to aggravated sexual abuse). In short, this was a legal error and harmless error review does not apply.
posted by Anonymous at 10:04 AM
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