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
_____________
Argued: September 26, 2017
______________
Before: SMITH, Chief Judge, McKEE and RESTREPO,
Circuit Judges.
(Filed: May 30, 2018)
______________
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
______________
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
13at 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