Argued: September 26, 2017
from the United States District Court for the District of New
Jersey (D.C. No. 2-13-cr-00660-001) District Judge: Honorable
T. Pickett, Esq.Pickett & Craig Counsel for Appellant
Desiree L. Grace, Esq. William E. Fitzpatrick, Esq. Mark E.
Coyne, Esq. Office of the United States Attorney Counsel for
Before: SMITH, Chief Judge, McKEE and RESTREPO, Circuit
RESTREPO, CIRCUIT JUDGE.
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.
December 2010, E.S. 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.
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.
before 3:00 a.m. on December 28, 2010, E.S. awoke to Shaw in
her cell. 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. 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.
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
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
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
assault. The surveillance videos refuted Shaw's
intimation to investigators that he was on break during the
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. He recorded the results in a chart listing
the "drift" for each surveillance camera clock.
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 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.
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
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.
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). The District
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.
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.
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
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 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).
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. 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).
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.
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 ...