Defendants-Appellants Kathy Scott and George Santiago, Jr. are former correction officers with the New York State Department of Correction and Community Supervision (“DOCCS”) at the Downstate Correctional Facility in Fishkill, New York.
The evidence at their jury trial was that “Scott and Santiago, along with other officers of DOCCS, assaulted Kevin Moore, an inmate at the Downstate Correctional Facility in Fishkill, New York.” Scott, 2020 WL 6494642 at *1. In addition, “[t]he evidence – which included the testimony of [two] fellow DOCCS officers … – further revealed that Defendants took numerous steps to cover up the assault, including falsifying the initial use-of force incident report.” Id.
Scott and Santiago were convicted of conspiracy to deprive a person of civil rights, in violation of 18 U.S.C. § 241; deprivation of civil rights, in violation of 18 U.S.C. § 242; conspiracy to falsify records, in violation of 18 U.S.C. § 371; and falsification of records, in violation of 18 U.S.C. § 1519. Scott, 2020 WL 6494642 at *1.
I. Sufficiency of the evidence of conspiracy to deprive an inmate of civil rights, in violation of 18 U.S.C. § 241
Scott and Santiago argued that because “the assault was spontaneous,” “there was insufficient evidence of an agreement among the correction officers.” Scott, 2020 WL 6494642 at *3.
Section 241 requires that “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.” 18 U.S.C. § 241.
Here, the corrections officers were transporting inmate Kevin Moore, and another inmate, to a housing complex at Fishkill, and told them that “due to a shortage of available cells, they would be housed in the Forensic Diagnostic Unit, an area typically reserved for inmates with mental health issues.” Scott, 2020 WL 6494642 at *1. “Moore became agitated and expressed concern that being placed into the Forensic Diagnostic Unit cell would change his health status in the prison records.” Id. After Moore began arguing with one of the correction officers, the officer punched Moore in the chest. Then other officers, including Scott and Santiago, joined in, simultaneously restraining and assaulting inmate Moore for about “two to four minutes.” Id. *1-*2.
The Circuit concluded, however, that “[a]lthough [the first correction officer’s] initial punch may have been spontaneous, the evidence at trial revealed that the other officers acted in concert and purposefully joined the assault.” Id.*3. And Scott, a supervisor, “then ordered two probationary officers removed from the area, which the jury could reasonably infer reflected an approval of what followed and a conscious intent to reduce the number of witnesses as it continued.” Id. The Circuit rejected the “Defendants’ contention that there must be an extended period of premeditation or a distinct verbal agreement prior to the impetus of the assault.” Id.
II. A jury instruction that § 1519 doesn’t have a “nexus” requirement, on the falsification of records charge, isn’t “plain error’.”
The Circuit rejects the defendants’ argument that the jury was required “to find a ‘nexus in time, causation, or logic’ between the falsification of records and a ‘particular federal investigation’ that was ‘reasonably foreseeable’ to the defendant.” Id. at *4 (quoting def’t brief) (emphasis added).
Section 1519 doesn’t require that the obstructive conduct be done in contemplation of a “concrete proceeding.” Id. Rather, “the statute was ‘specifically meant not to include any technical requirement … to tie the obstructive conduct to a pending or imminent proceeding or matter.’” Id. (citations omitted). And the Circuit doesn’t accept the defendants’ argument that the Supreme Court’s interpretation of the tax statute, 26 U.S.C. 7212(a), in Marinello v. United States, 138 S. Ct. 1101 (2018), applies to section 1519. Scott, 2020 WL 6494642 at *4.
III. Section § 1519 isn’t unconstitutionally vague as to the defendant.
The Circuit rejects the argument that section 1519 was unconstitutionally vague as to the defendant here. It stated: “Outside of the First Amendment context, we look to whether the ‘statute is vague as applied to the particular facts at issue.’ As a result, one whose conduct is ‘clearly proscribed’ by a statute cannot challenge it as void for vagueness.” Id. at *5 (citations omitted).
Here, section 1519 wasn’t unconstitutionally vague as to Scott (who raised the issue). According to the Circuit, “it is clear that the statute was not vague as applied to Scott’s conduct, which involved the filing of a false injury report and the orchestration of false use-of-force reports and photographs designed to mislead prison administrators and others into believing that Moore was the aggressor, as opposed to the victim of a brutal assault.” Id. at *6. And it also was significant that the district court instructed the jury that the “defendant must knowingly act with the intent to impede an investigation to be liable under the statute[.]” Id. at *5.