United States v. Scott

18-2836 (L)
United States v. Scott
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND
IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTS
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED
WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 5th day of November, two thousand twenty.
PRESENT: AMALYA L. KEARSE,
RICHARD J. SULLIVAN,
MICHAEL H. PARK,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 18-2836
No. 18-2882
KATHY SCOTT, AKA KATHY TODD,
GEORGE SANTIAGO, JR.,
Defendants-Appellants,
CARSON MORRIS,
Defendant.
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FOR APPELLANT SCOTT: RICHARD D. WILLSTATTER, Green
& Willstatter, White Plains, NY.
FOR APPELLANT SANTIAGO: DANIEL A. HOCHHEISER, Law
Offices of Daniel A. Hochheiser,
Scarsdale, NY.
FOR APPELLEE: ANDREW DEMBER, Assistant
United States Attorney (Anna M.
Skotko, Won Shin, Assistant United
States Attorneys, on the brief), for
Audrey Strauss, Acting United States
Attorney for the Southern District of
New York, New York, NY.
Appeal from judgments of the United States District Court for the Southern
District of New York (Kenneth M. Karas, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgments of the district court are
AFFIRMED.
Defendants-Appellants Kathy Scott and George Santiago, Jr. – former
correction officers with the New York State Department of Correction and
Community Supervision (“DOCCS”) at the Downstate Correctional Facility in
Fishkill, New York – appeal from their judgments of conviction and sentences
following a two-week jury trial in the United States District Court for the Southern
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District of New York (Karas, J.) for 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. Defendants’ challenges to their
convictions under 18 U.S.C. §§ 241 and 1519 are addressed in a separate opinion
filed simultaneously with this summary order. In this summary order, we address
the remainder of Defendants’ arguments, which include challenges to the
adequacy of the jury instructions and the sufficiency of the evidence with respect
to Scott’s aiding and abetting charge under 18 U.S.C. § 242, the effectiveness of
Santiago’s trial counsel, and the procedural reasonableness of both Defendants’
sentences. We assume the parties’ familiarity with the underlying facts, the record
of prior proceedings, and the arguments on appeal, to which we refer only as
necessary to explain our decision to affirm.
I. Standard of Review
We review the sufficiency of the evidence de novo. United States v. Klein, 913
F.3d 73, 78 (2d Cir. 2019). In challenging the jury’s verdict, a “movant bears a
heavy burden.” Id. (internal quotation marks omitted). “A reviewing court must
credit every inference that could have been drawn in the government’s favor, and
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affirm the conviction so long as, from the inferences reasonably drawn, the jury
might fairly have concluded guilt beyond a reasonable doubt.” Id. (alterations,
internal citations, and internal quotation marks omitted).
In reviewing jury instructions, we look to the charge “as a whole to see if the
entire charge delivered a correct interpretation of the law.” United States v. Al
Kassar, 660 F.3d 108, 127 (2d Cir. 2011). Where, as here, a defendant fails to object
to the jury charge, we review only for plain error. United States v. Bahel, 662 F.3d
610, 634 (2d Cir. 2011). Under this standard, “an appellate court may, in its
discretion” grant relief if the defendant demonstrates (1) error, (2) that is plain,
(3) that affected the defendant’s substantial rights, which typically means there is
a “reasonable probability that the error affected the outcome of the trial,” and
(4) that “seriously affect[ed] the fairness, integrity[,] or public reputation of
judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010) (internal
quotation marks omitted).
Finally, we review the district court’s interpretation of the United States
Sentencing Guidelines (the “Guidelines” or “U.S.S.G.”) de novo and finding of facts
for clear error. United States v. Rubenstein, 403 F.3d 93, 99 (2d Cir. 2005).
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II. Discussion
A. 18 U.S.C. §§ 242 and 2
Scott argues that the district court incorrectly instructed the jury as to 18
U.S.C. § 242, and that there was insufficient evidence to uphold her conviction
under that section. Specifically, Scott contends that “Section 242 does not impose
an affirmative duty to act,” Scott Br. at 35, and that the district court therefore erred
in charging the jury that she could be liable for “failure to act” if she did so “with
the specific intent to fail to do something the law require[d] to be done,” Scott
App’x at 482–83.
Section 242 makes it a crime for a person, acting “under color of any law,”
to “willfully” deprive an individual of “any rights, privileges, or immunities
secured or protected by the Constitution or laws of the United States.” 18 U.S.C.
§ 242. The government’s theory at trial was that Defendants violated § 242 by
“willfully and knowingly depriv[ing] Kevin Moore of his constitutional right to be
free from the excessive use of force, amounting to the infliction of cruel and
unusual punishment resulting in bodily injury.” Scott App’x at 464. To establish
a violation of § 242, the government was required to prove that the defendant
“(1) acted under color of law; (2) used excessive force amounting to punishment;
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(3) acted willfully; and (4) caused bodily injury.” United States v. Coté, 544 F.3d 88,
98 (2d Cir. 2008). “To convict a defendant of aiding and abetting [a violation of
§ 242], the government [was required to] prove that ‘the underlying crime was
committed by someone other than the defendant and that the defendant [herself]
either acted or failed to act with the specific intent of advancing the commission
of the underlying crime.’” United States v. Cain, 671 F.3d 271, 303 (2d Cir. 2012)
(quoting United States v. Pipola, 83 F.3d 556, 562 (2d Cir. 1996)).
Although Scott was charged both as a principal and an aider and abettor,
she focuses only on the latter charge in her appeal. As to aiding and abetting
liability, the district court instructed the jury that it was required to find that the
“defendant[] willfully and knowingly associated [herself] in some way with the
crime, and that the defendant[] willfully and knowingly participated in the crime
by doing some act to help make the crime . . . succeed,” meaning that “the
defendant engaged in some affirmative conduct or overt act with the specific
purpose of bringing about that crime.” Scott App’x at 482. It further instructed
the jury that “[p]articipation in a crime is willful if action is taken voluntarily and
intentionally, or in the case of a failure to act, with the specific intent to fail to do
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something the law requires to be done; that is to say, with a bad purpose either to
disobey or disregard the law.” Scott App’x at 482–83.
Although Scott makes much of the fact that § 242 by itself imposes no duty
to act, the Second Circuit has recognized “a legal duty to act can arise from a
statute specifically creating the duty . . . or by extrapolation from a different
statute, the common law, or contract.” United States v. Sabhnani, 599 F.3d 215, 237
n.12 (2d Cir. 2010). A legal duty can equally arise from the United States
Constitution – here, the right to be free from excessive force as provided by the
Eighth Amendment. See Wilkins v. Gaddy, 559 U.S. 34, 40 (2010) (emphasizing that
the Eighth Amendment prevents against excessive force that is “carried out
maliciously and sadistically” (internal quotation marks omitted)); see also Owens v.
Haas, 601 F.2d 1242, 1249 (2d Cir. 1979) (noting that “the federal government owes
a duty of reasonable care to safeguard the security of prisoners under its control,”
which stems, in part, from “general duties imposed by the Constitution”). It is
well-settled that an officer has a duty to intervene to protect an individual under
the control and custody of the state from excessive force. See, e.g., DeShaney v.
Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 199–200 (1989) (noting that
“when the State takes a person into its custody and holds him there against his
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will, the Constitution imposes upon it a corresponding duty to assume some
responsibility for his safety,” and imposes an “affirmative duty to protect”); see
also Figueroa v. Mazza, 825 F.3d 89, 106 (2d Cir. 2016) (“A police officer is under a
duty to intercede and prevent fellow officers from subjecting a citizen to excessive
force . . . . Liability attaches on the theory that the officer, by failing to intervene,
becomes a ‘tacit collaborator’ in the illegality.” (internal citation omitted)).
Accordingly, we find that the district court’s instructions were not plainly
erroneous.
Second, Scott contends that, even if the jury instructions were correct, there
was insufficient evidence that she affirmatively acted to further the crime or that
she even had a duty to stop the attack. As to her first point, there was more than
sufficient evidence for the jury to find that Scott took steps to physically restrain
Moore and that she instructed others to do so, with the specific intent of facilitating
the attack. In weighing the evidence, the jury was entitled to reject Scott’s defense
that she acted for the purpose of legitimately restraining an unruly inmate. As to
her second point, the evidence was more than sufficient to show that Scott had a
duty to intervene. This duty, as noted above, stemmed from the Eighth
Amendment. Moreover, it was further incorporated in the DOCCS policies, which
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made clear that she had a duty to act in circumstances such as this: specifically, a
DOCCS Lieutenant and a DOCCS training official testified that officers are trained
to refrain from using excessive force and that supervisors have a duty to prevent
subordinates from using such force. And, as the record makes clear, there was
ample proof to establish that Scott failed to fulfill that duty. The evidence was thus
legally sufficient, and the jury was permitted to find that Scott knowingly and
willfully aided and abetted the other officers’ violations of § 242. 1
B. Ineffective Assistance of Counsel
Santiago also contends that he was denied the right to a fair trial because his
counsel was ineffective in (1) eliciting testimony from Corrections Officer Roberto
Brown about Santiago’s previous use-of-force incident, which he later referenced
in summation, and (2) eliciting hearsay regarding a false account of the incident
during the cross-examination of Moore. To raise an ineffective assistance of
counsel claim, a defendant must show counsel’s actions fell below “an objective
standard of reasonableness” under “prevailing professional norms,” and that “but
for counsel’s unprofessional errors, the result of the proceeding would have been
1We further emphasize that the jury was not even required to reach the question of aiding and
abetting liability, since the evidence was more than sufficient for the jury to find that Scott
violated § 242 as a principal by restraining Moore so that he could be assaulted by Santiago.
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different.” Strickland v. Washington, 466 U.S. 668, 687–89, 693–94 (1984). “When
faced with a claim for ineffective assistance of counsel on direct appeal, we may:
(1) decline to hear the claim, permitting the appellant to raise the issue as part of a
subsequent petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255;
(2) remand the claim to the district court for necessary factfinding; or (3) decide
the claim on the record before us.” United States v. Morris, 350 F.3d 32, 39 (2d Cir.
2003). “Among these options, the Supreme Court has instructed that ‘in most cases
a motion brought under § 2255 is preferable to direct appeal for deciding claims of
ineffective assistance,’” United States v. Tarbell, 728 F.3d 122, 128–29 (2d Cir. 2013)
(quoting Massaro v. United States, 538 U.S. 500, 504 (2003)), since the district court
is “the forum best suited to developing the facts necessary to determining the
adequacy of representation during an entire trial,” and may “take testimony from
witnesses for the defendant and the prosecution and from the counsel alleged to
have rendered the deficient performance,” Massaro, 538 U.S. at 505. Accordingly,
we decline to consider Santiago’s ineffective assistance claim at this time and
dismiss that claim, without prejudice to the filing, in due course, of a § 2255
petition. See Tarbell, 728 F.3d at 128–29; see also Morris, 350 F.3d at 39.
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C. Reasonableness of the Sentences
Scott and Santiago both contend that the district court erred in applying a
two-level sentencing enhancement for “physically restrain[ing] [the victim] in the
course of the offense,” U.S.S.G. § 3A1.3, insisting that the only force they used was
part of a legitimate attempt to regain control over Moore. But the district court –
like the jury – explicitly rejected this argument, finding that the “purpose” of the
restraint was to “ma[ke] the assault and the continued assault possible.” Scott
App’x at 540. In light of the wealth of evidence demonstrating Scott’s and
Santiago’s roles in the assault, we cannot say that the district court’s finding was
clearly erroneous.
Scott also argues that the district court erred in applying a three-level
enhancement based on her role as a “manager or supervisor (but not an organizer
or leader)” of “criminal activity [that] involved five or more participants or was
otherwise extensive.” U.S.S.G. § 3B1.1(b). According to the Sentencing
Guidelines, a defendant is a manager or supervisor if she “exercised some degree
of control over others involved in the commission of the offense or played a
significant role in the decision to recruit or to supervise lower-level participants.”
United States v. Hertular, 562 F.3d 433, 448 (2d Cir. 2009) (interpreting U.S.S.G.
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§ 3B1.1(b)). Although Scott argues that she was not a “manager or supervisor”
during the assault, the district court emphasized that she was “the ranking
official,” and that her participation in the assault therefore had the “symbolic
significance” of giving the “green light” to Santiago and the other officers on the
scene. Scott App’x at 539. In addition, the evidence at trial established that Scott
directed the probationary officers out of the area to limit the number of witnesses
to the assault, directed her subordinate officers to submit false use-of-force reports
that described Moore as the aggressor, and directed other officers not to submit
reports even though they were required to do so. Based on the record before it,
we cannot say that the district court erred in applying the aggravated role
enhancement.
We have considered Defendants’ remaining arguments and conclude that
they are without merit. For the foregoing reasons and the reason stated in the
accompanying opinion filed simultaneously with this summary order, the
judgments of the district court are AFFIRMED.
FOR THE COURT:
Catherine O-Hagan Wolfe, Clerk of Court
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