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United States v. Perez

August 3, 2009

UNITED STATES OF AMERICA, APPELLEE,
v.
ANGEL PEREZ, GLEN CUMMINGS, AND ELIZABETH TORRES, DEFENDANTS-APPELLANTS.



SYLLABUS BY THE COURT

Appeal from the August 20, 2008, and October 6, 2008, judgments of the United States District Court for the Eastern District of New York (Carol B. Amon, District Judge), convicting Defendants-Appellants of various offenses, including obstruction of justice, in violation of 18 U.S.C. § 1512. Their convictions arise out of an episode involving use of force by former corrections officers against a prisoner at the Metropolitan Detention Center in Brooklyn, New York. The Appellants allege primarily that the evidence was insufficient to establish that their obstruction occurred in the course of an "official proceeding" within the meaning of section 1512.

Judgments affirmed.

The opinion of the court was delivered by: Jon O. Newman, Circuit Judge.

Heard: April 27, 2009

Before: NEWMAN, POOLER, and PARKER, Circuit Judges.

This appeal from criminal convictions of three federal corrections officers primarily concerns interpretation of the phrase "official proceeding" as used in 18 U.S.C. § 1512 punishing obstruction of justice. The principal issue is whether the procedures employed by the Federal Bureau of Prisons ("BOP") to investigate incidents involving use of force by BOP staff upon prisoners and to determine adherence to BOP policy constitute an "official proceeding" within the meaning of section 1512. This issue arises on an appeal by Angel Perez, Glen Cummings, and Elizabeth Torres from the August 20, 2008, and October 6, 2008, judgments of the United States District Court for the Eastern District of New York (Carol B. Amon, District Judge), convicting them, after a jury trial, of various offenses including obstruction of justice in violation of 18 U.S.C. § 1512.*fn1 The Defendants challenge the sufficiency of the evidence to support the "official proceeding" element of subsection 1512(c)(2). We conclude that the procedures of the BOP qualify as an "official proceeding" for purposes of section 1512 and that the evidence of these procedures was sufficient, and we therefore affirm.

Background

The three Defendants are all former corrections officers at the Metropolitan Detention Center ("MDC") in Brooklyn, New York. They were convicted on charges relating to their roles in the April 11, 2006, assault on MDC inmate Kenneth Howard and the cover-up of that beating.

The jury was entitled to find the following facts. On April 11, 2006, Perez, Torres, and Cummings, along with other officers, responded to a body alarm activated by a corrections officer who was injured in an altercation with inmate Howard. The responding officers put Howard in handcuffs and transported him from his unit to the MDC's Special Housing Unit ("SHU"). As Howard was being escorted into the elevator, Corrections Officer Jamie Toro tripped him and threw him face down to the floor of the elevator. While Howard was down, Cummings stomped on his back, shoulders, and neck, while Perez and Torres watched. Then Torres intervened, pushed Cummings off of Howard, and told everyone to move away from the elevator. After order was eventually restored, Howard, who suffered several lacerations and bruises, was transported to the SHU.

The BOP conducts an investigation after every use of force by a staff member on an inmate at the MDC. See U.S. Dep't of Justice, Federal Bureau of Prisons, "Program Statement," No. P5566.06 "Use of Force and Application of Restraints" (Nov. 30, 2005) ("BOP Use of Force Program Statement"). The investigation starts with the preparation of a "Use of Force Report." Id. ¶ 14(a). At the MDC, this report is usually prepared by an MDC lieutenant and compiled with the relevant portion of the lieutenant's log, a "use of force memorandum" written by each corrections officer involved in the incident, and background information on the inmate. Once the paperwork is completed, the Use of Force Report and other materials are forwarded to an After-Action Review Committee, composed of the Warden, the Associate Warden (responsible for correctional services), the Health Services Administrator, and a captain. See id. ¶ 15. The After-Action Review Committee is required to "determine if policy was adhered [to]" and complete an "After-Action Report" indicating its "findings," see id., and "decide if the matter requires further investigation," see id. ¶ 15(c). The Warden may refer the matter for further investigation to the Department of Justice's Office of Inspector General ("DOJ/OIG"), the BOP's Office of Internal Affairs, or the Federal Bureau of Investigation. See id.

The jury was entitled to find that Perez and Cummings gave false accounts of the incident in their use of force memoranda, and that Torres did so in her use of force memorandum as well as the Use of Force Report. Specifically, these Defendants falsely stated that Howard had become combative outside the elevator and "was placed on the ground" by the officers. After videotape of the incident was recovered, the matter was referred to the DOJ/OIG for investigation. That investigation, in turn, ripened into this criminal proceeding.

Cummings, Torres, and Perez were convicted on a count charging that they "did knowingly, intentionally and corruptly obstruct, influence and impede, and attempt to obstruct, influence and impede, an official proceeding, to wit: a BOP investigation into the use of force against John Doe at the MDC on April 11, 2006," in violation of 18 U.S.C. § 1512(c)(2). Cummings was also convicted on a count charging him with depriving another of civil rights in violation of 18 U.S.C. § 241, but does not challenge this conviction on appeal.

The sentences include prison terms of 36 months for Cummings, 15 months for Torres, and 9 months for Perez, plus three years of ...


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