United States v. Verbickas

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
February 28, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee/Cross-
Appellant,

v. Nos. 03-1515, 03-1522, 03-1523,
04-1000, 04-1538, 04-1540
MIKE LAVALLEE, ROD SCHULTZ,
and ROBERT VERBICKAS,

Defendants-Appellants/Cross-
Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D. Ct. No. 00-CR-481-D)

Brian K. Holland, Holland & Pagliuca, P.C., Denver, Colorado, appearing for
Appellant/Cross-Appellee Verbickas.

Richard A. Hostetler, Law Office of Richard A. Hostetler, Denver, Colorado,
appearing for Appellant/Cross-Appellee LaVallee.

Neil McFarlane, Denver, Colorado, appearing for Appellant/Cross-Appellee
Schultz.

Karl N. Gellert, Attorney (R. Alexander Acosta, Assistant Attorney General,
Bradley J. Schlozman, Acting Assistant Attorney General, and Jessica Dunsay
Silver, Attorney, with him on the briefs), United States Department of Justice,
Washington, DC, appearing for Appellee/Cross-Appellant United States.

Before TACHA, Chief Circuit Judge, BRISCOE, and LUCERO, Circuit Judges.
TACHA, Chief Circuit Judge.

This appeal relates to a three-year investigation of inmate abuse at the

United States Penitentiary in Florence, Colorado (“USP-Florence”), that resulted

in charges against ten former correctional officers for conspiracy and deprivation

of inmates’ constitutional rights in violation of 18 U.S.C. §§ 241 and 242.

Following a jury trial, two correctional officers, Michael LaVallee and Rod

Schultz, were found guilty of both offenses, and Robert Verbickas was found

guilty of the substantive deprivation charge. All three men (collectively,

“Appellants”) appeal both their convictions and sentences. The Government

cross-appeals their sentences. Mr. Schultz also appeals the District Court’s denial

of a motion for a new trial based on newly discovered evidence and the

Government’s suppression of evidence in violation of Brady v. Maryland. We

have consolidated all five cases for disposition on appeal. We take jurisdiction

under 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

Beginning in 1997, the Government began investigating allegations of the

widespread abuse of prisoners and the falsification of records to cover up that

abuse at USP-Florence. As a result of the investigation, eight Bureau of Prisons

(“BOP”) correctional officers were indicted and two were charged by information.

Three officers—Dennis Britt, Charlotte Gutierrez, and Kenneth Mitchell—pleaded

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guilty and cooperated with the Government by providing testimony at trial.

The seven remaining defendants, including Appellants, were charged in a

ten-count superceding indictment on February 6, 2001. All seven were named in

Count I, which alleged a vast conspiracy of abuse and cover-up, in violation of 18

U.S.C. § 241. The remaining nine counts charged certain defendants with

excessive force against individually named inmates in violation of the inmates’

Eighth Amendment right to be free from cruel and unusual punishment. See 18

U.S.C. § 242.

At trial, the Government sought to establish a vast conspiracy to abuse

inmates. Throughout trial, the Government maintained a “green light” theory in

which it alleged that Captain Terry Hines had given the defendants the “green

light to take care of business” with certain inmates in the Special Housing Unit 1

(“SHU”) who were aggressive toward the prison staff. Several correctional

officers testified that they understood this to mean that they were to abuse

inmates to let them know that aggression against prison staff would not be

tolerated. Although not all supervisors were tolerant of the wrongful conduct,

some supervisors were.

Standard procedure at the SHU for any use of force required the officers to

document the incident through memoranda. Additionally, any time there was a

1
The SHU is the prison unit that prisoners were sent to if they had
disciplinary problems or were otherwise being punished through administrative
segregation.

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planned use of force, the incident was generally videotaped. The tapes were

designed to ensure that the officers acted in accordance with the BOP’s “Use of

Force Policy.”

Accordingly, in support of its conspiracy theory under 18 U.S.C. § 241, the

Government presented a case at trial that detailed the officers’ agreements to

provide false reports and fabricate injuries to themselves when they violated the

BOP’s Use of Force Policy by beating inmates unjustifiably. They presented

testimony that several officers created an atmosphere that not only tolerated abuse

of inmates, but encouraged it. The Government maintained that, in addition to

conspiring to do so, the officers in fact violated inmates’ civil rights through

beatings and assaults. The facts of the incidents giving rise to the Appellants’

assault convictions under 18 U.S.C. § 242 are as follows.

A. The Howard Lane Assault

Testimony at trial demonstrated that Howard Lane, a USP-Florence

prisoner, wrote several letters containing sexually explicit remarks to a female

USP-Florence officer. After the discovery of the letters, Mr. Verbickas escorted

Mr. Lane to Captain Hines’s office, where the Captain told Mr. Verbickas and Mr.

Britt to “take this piece of shit down to SHU and give him a treatment.” Mr.

Verbickas and Mr. Britt applied restraints to Mr. Lane’s wrists and took him to

the SHU. As he was led to the SHU, Mr. Lane threatened the officers and

struggled against the restraints. When the trio arrived at the SHU, Ms. Gutierrez

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opened a cell door as the other officers escorted Mr. Lane inside. Mr. Britt

returned to the officers’ station.

Ms. Gutierrez testified that she saw Mr. Verbickas punch Mr. Lane while

he was standing against the wall of the cell, his hands still restrained behind his

back. She further stated that Mr. Verbickas then placed him on the floor and that

she kicked him in the ribs so as to avoid leaving visible injuries and the

concomitant need to file an incident report. Mr. Verbickas then grabbed Mr. Lane

by his collar and the seat of his pants, lifted him waist high, and dropped him on

his face. Blood oozed from Mr. Lane’s lip. Finally, Mr. Verbickas threw Mr.

Lane up against the wall, leaving a blood stain.

Because Mr. Lane suffered visible facial injuries as a result of the beating,

the officers discussed how they would falsify their incident reports to avoid an

investigation. The reports ultimately filed with USP-Florence stated that Mr.

Lane kicked both Mr. Verbickas and Ms. Gutierrez, and Mr. Lane threw himself

up against the wall. To support this version of events, Ms. Gutierrez testified that

she inflicted an injury on herself.

B. The Pedro Castillo Assault

Pedro Castillo, another inmate in the SHU, was an orderly in that unit and

responsible for cleaning as directed by the officers. During an argument with Ms.

Gutierrez on the morning of April 5, 1996, Mr. Castillo threw a mop and bucket

of water onto the floor. Because of this, Mr. Castillo lost his job as an orderly as

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well as the freedom associated with the job; he was forced to return to 23-hour

lockdown.

The Government presented evidence at trial that later that day, several

officers met to discuss how they would further punish Mr. Castillo for his

behavior that morning. According to the Government, the officers resolved to

concoct a story that Mr. Castillo was cutting himself—he was a known self-

mutilator—which would require them to perform a forced-cell move. The officers

assigned roles to each other in the ensuing assault. Because a video camera was

perched outside Mr. Castillo’s cell, Mr. Schultz’s role in the assault was to knock

the camera over so that it would not record the officers entering the cell. After

doing so, several officers entered the cell, pulled Mr. Castillo off his top bunk,

put him on the floor, and restrained him with handcuffs. Additional testimony

demonstrated that the officers then took Mr. Castillo to a holding cell where Mr.

Schultz and Mr. LaVallee each struck him two or three times in the back with

their fists while Mr. Mitchell held Mr. Castillo against the wall. Mr. Mitchell

then released Mr. Castillo and walked back to the officers’ station approximately

twenty feet away; he could hear the sound of the blows as the officers continued

to beat Mr. Castillo. Ms. Gutierrez then entered the cell and Mr. LaVallee told

her to kick Mr. Castillo, which she did. After the assault, Mr. LaVallee told Ms.

Gutierrez that they had beaten Mr. Castillo on her behalf.

Following the incident, the officers again fabricated false reports to justify

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the forced-cell move. The officers reported that Mr. Castillo had been cutting

himself and that when the officers entered the cell to subdue him, Mr. Schultz

slipped and knocked down the camera. The reports also stated that once the

officers were inside the cell, Mr. Castillo punched one of them in the head. None

of the reports mentioned that Mr. Castillo was beaten.

Mr. Verbickas was charged with one count of conspiracy to violate

inmates’ civil rights and three substantive assault counts regarding individual

inmates. Mr. Schultz and Mr. LaVallee were also charged with conspiracy.

Additionally, Mr. Schultz was charged with three substantive assault counts and

Mr. LaVallee was charged with four. Following approximately eight weeks of

testimony and two weeks of jury deliberations, Mr. Verbickas was convicted on

one count of using excessive force against Mr. Lane and was sentenced to 30

months’ imprisonment. Both Mr. Schultz and Mr. LaVallee were convicted on

the conspiracy charge and the substantive assault charge involving Mr. Castillo.

The District Court sentenced them to 41 months’ imprisonment. This appeal

followed. 2

In Mr. Verbickas’s opening brief, he raises four issues that he claims

warrant reversal of his conviction. Mr. LaVallee and Mr. Schultz incorporated

these claims by reference into their briefs on appeal. We will therefore address

2
The four remaining defendants—James Bond, Brent Gall, David Pruyne,
and Ken Shatto—were acquitted on all counts and, accordingly, are not parties to
these appeals.

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these issues first, as they apply to all the Appellants. We will then address Mr.

LaVallee’s and Mr. Schultz’s additional claims of error in their convictions.

Finally, we will address all sentencing issues including the Appellants’ claimed

errors under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005) and the

Government’s cross-appeal contesting the District Court’s failure to apply an

enhancement for obstruction of justice and its discretionary decision to depart

downward from the applicable Guidelines range.

III. COMMON ISSUES

A. Bureau of Prisons Attorney on Prosecution Team

Jenifer Grundy served as a supervisory attorney for the BOP at USP-

Florence from November 1992 to April 2002. In that position, she was

responsible for providing legal services to the facility as well as to correctional

officers who were accused by inmates of constitutional violations in Bivens

actions. See 28 C.F.R. § 50.15 (providing legal representation to federal

employees in actions arising out of performance of their official duties). When an

officer would make a request for representation, Ms. Grundy would take the

officer’s statement and then submit it to the Department of Justice (“DOJ”). The

DOJ would determine whether representation was warranted.

Prior to trial, several of the defendants in this case had Bivens actions filed

against them. Relevant to this case, Mr. LaVallee, Mr. Schultz, and David Pruyne

were each named in several actions. According to the Appellants, some of the

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defendants contacted Ms. Grundy to obtain DOJ representation in the actions

against them.

Later, in connection with the instant case, Ms. Grundy contacted Mr.

Pruyne and another of the acquitted defendants, Brent Gall, and requested that

they speak with DOJ attorney Mark Blumberg—one of the Government’s

prosecutors in this case—and an FBI agent. She did not represent either Mr.

Pruyne or Mr. Gall at their interviews. During the interviews, Mr. Pruyne and

Mr. Gall were allegedly advised that they were the targets of an investigation

involving the abuse of inmates. 3

On April 21, 2003, ten days into trial, it became apparent to the defendants,

including Messrs. LaVallee, Schultz, and Verbickas, that Ms. Grundy was acting

with the Government as part of the prosecution against them. They filed a joint

motion to disqualify her, 4 alleging violations of Rules 1.9, 1.11 and 1.6(a) of the

3
For various reasons, the substance of these interviews later became the
subject of two motions to suppress. The District Court denied Mr. Pruyne’s
motion to suppress as moot after Mr. Pruyne’s counsel withdrew it. The District
Court denied Mr. Gall’s motion to suppress because, inter alia, there was no
evidence that Mr. Gall believed that he had established an attorney-client
relationship with Ms. Grundy.
4
If this motion was untimely, our review would be severely limited, and
subject only to plain error review. United States v. Stiger, 413 F.3d 1185, 1195
n.5 (10th Cir. 2004). It is not clear, however, that the facts giving rise to the
motion to disqualify were known to the defendants before it was made. Thus, we
decline to apply plain error analysis to this claim.

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Colorado Rules of Professional Conduct. 5 Counsel for the Government responded

that Ms. Grundy’s only role in the case was to “assist and manage witnesses and

just general management of the trial.” The Government further explained that she

had not been hired by the U.S. Attorney’s Office, nor was she acting as a special

assistant to the U.S. Attorney. The defendants presented evidence, however, that

Ms. Grundy was acting as a “Special AUSA” and was participating in witness

5
Rule 1.9 states: “A lawyer who has formerly represented a client in a
matter shall not thereafter represent another person in the same or a substantially
related matter in which that person’s interests are materially adverse to the
interests of the former client unless the former client consents after consultation.”
Rule 1.11(b), (e), which relate to successive government and private employment,
provide:

(b) Except as law may otherwise expressly permit, a lawyer having
information that the lawyer knows is confidential government
information about a person acquired when the lawyer was a public
officer or employee, may not represent a private client whose
interests are adverse to that person in a matter in which the
information could be used to the material disadvantage of that
person. A firm with which that lawyer is associated may undertake or
continue representation in the matter only if the disqualified lawyer
is screened from any participation in the matter and is apportioned no
part of the fee therefrom.
...
(e) As used in this Rule, the Term "confidential government
information" means information which has been obtained under
governmental authority and which, at the time this rule is applied, the
government is prohibited by law from disclosing to the public or has
a legal privilege not to disclose, and which is not otherwise available
to the public.

Under Rule 1.6(a), “[a] lawyer shall not reveal information relating to
representation of a client unless the client consents after consultation, except for
disclosures that are impliedly authorized in order to carry out the representation.”

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interviews. Before ruling on the motion for disqualification, the District Court

ordered the Government to submit a written response and then denied the motion

to disqualify as “utterly without merit.”

The Appellants claim that Ms. Grundy’s participation on the prosecution

team violated their constitutional right to a fair trial. Indeed, “[a] fair trial in a

fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S.

133, 136 (1955). “The right to due process and a fair trial include the essential

element that there is no unfair advantage to the prosecution by reason of a prior

professional relationship between a member of its staff and a criminal defendant

concerning the same or closely related matter.” State v. Boyd, 560 S.W.2d 296,

298–99 (Mo. Ct. App. 1977) (quotation omitted). “[D]ue process is violated

when an attorney represents a client and then participates in the prosecution of

that client with respect to the same matter.” United States v. Schell, 775 F.2d

559, 566 (4th Cir. 1985).

In order to determine whether disqualification of counsel is warranted

because of prior representation, we ordinarily undertake a three-part inquiry in

which we ask whether “(1) an actual attorney-client relationship existed between

the moving party and the opposing counsel; (2) the present litigation involves a

matter that is substantially related to the subject of the movant’s prior

representation; and (3) the interests of the opposing counsel’s present client are

materially adverse to the movant.” United States v. Stiger, 413 F.3d 1185, 1196

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(10th Cir. 2005) (quotations and citation omitted). If the moving party makes a

non-frivolous allegation that he has had an attorney-client relationship in a

substantially related matter, a district court must investigate the allegation further

through an evidentiary hearing before denying a motion to disqualify. Id. Failure

to do so constitutes an abuse of discretion. Id.

Here, the District Court concluded that the motion to disqualify Ms.

Grundy for violations of the Colorado Rules of Professional Conduct was

frivolous. Indeed, it explicitly stated that the motion was “utterly without merit.”

On appeal, Mssrs. LaVallee and Schultz proffer no argument to suggest that the

District Court erred in concluding that Ms. Grundy violated the rules with respect

to any former relationship she may have had with them. The only reference to a

relationship between the Appellants and Ms. Grundy is the following:

[S]o-called “Bivens” violations [were filed] against the Defendants
and other correctional officers. LaVallee, Schultz and Bond . . . were
named as Defendants in Turner. Pruyne was named as a defendant in
Bryant, Collins, and Verdecia. Pruyne and other Defendants sought
legal representation from the . . . DOJ . . . . Grundy represented
Pruyne and these Defendants regarding their requests for DOJ
representation. She entered into an attorney-client relationship with
Defendants and gathered relevant information regarding their
requests to be afforded DOJ legal representation in these civil
actions.

Based on this conclusory argument, we cannot conclude that District Court erred

in finding Mr. LaVallee’s and Mr. Schultz’s argument frivolous. In fact, neither

Appellant ever averred that he actually spoke with Ms. Grundy. At the District

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Court level, the factual basis for Mr. Schultz’s claim—which the District Court

rejected—amounted to an assertion that “[u]pon information and belief statements

were given to Ms. Grundy and or a representative of the U.S. Government.” We

therefore find no abuse of discretion in the District Court’s conclusion on this

point.

Nonetheless, the Appellants argue that the court erred because it failed to

conduct an evidentiary hearing to determine the extent of Ms. Grundy’s attorney-

client relationship with Mr. Pruyne and Mr. Gall. Although the record shows that

the court had already determined that no attorney-client relationship existed with

respect to Mr. Gall, the same cannot be said with respect to Mr. Pruyne. Even so,

we need not decide whether the District Court erred in failing to hold an

evidentiary hearing. Both Mr. Gall and Mr. Pruyne were acquitted of the charges

against them and therefore are not parties to this appeal.

The remaining issue, then, is whether the three Appellants were denied a

fair trial because Ms. Grundy purportedly obtained privileged information through

her alleged prior representation of the Appellants’ codefendants Messrs. Gall and

Pruyne such that the prosecution had an unfair advantage in obtaining the

Appellants’ convictions. The Fourth Circuit confronted similar circumstances in

United States v. Schell, 775 F.2d 559.

Schell involved the indictment of thirty-nine individuals for numerous

crimes, including conspiracy to distribute controlled substances in violation of 21

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U.S.C. § 846. During the investigation of the crimes, three individuals under

investigation sought representation from an attorney, David Jividen. Id. at

562–63. Mr. Jividen represented them when they appeared before the third grand

jury in the matter. Id. at 562. Several months later, Mr. Jividen became

employed as an Assistant United States Attorney in the district in which the

appellants were later indicted. Id. at 562. In his role as a U.S. Attorney, he

appeared before the fourth grand jury leading up to the indictments. Id. at 563.

After the grand jury returned its indictment, Mr. Jividen no longer participated in

the prosecution of his former clients nor participated in any proceeding in which

his former clients were witnesses or potential witnesses. Id. at 564. All three of

his clients, along with thirty-five coconspirators, were convicted. Id.

On appeal, two of Mr. Jividen’s former clients and two of their

coconspirators appealed their convictions, arguing that Mr. Jividen’s appearance

before the fourth grand jury violated their due process rights and was per se

prejudicial. Id. at 564–65. The Fourth Circuit stated:

The relationship between an attorney and his client is a sacred one.
In that relationship, the client must be secure in the knowledge that
any information he reveals to counsel will remain confidential. The
confidentiality of the attorney-client relationship is severely
compromised, if not destroyed, when, after representing a client, a
lawyer joins in the criminal prosecution of that client with respect to
the identical matter about which the attorney originally counseled the
client. Such switching of sides is fundamentally unfair and
inherently prejudicial. Without question, the client’s right to a fair
trial, secured by the due process clauses of the fifth and fourteenth
amendments, is compromised under these circumstances.

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Id. at 565 (emphasis omitted). It therefore reversed the convictions of Mr.

Jividen’s former clients. Id. at 566. In so concluding, however, the court refused

to find constitutional error with respect to the appellants who had established no

attorney-client relationship with Mr. Jividen and who had not demonstrated that

Mr. Jividen’s former clients had imparted to him confidential information

regarding them. Id. at 566.

Similarly, in McFarlan v. District Court, the Supreme Court of Colorado

held that a prosecutor is not automatically disqualified from prosecuting an

accused because of a prior attorney-client relationship with a codefendant of the

accused. 718 P.2d 247, 250 (Colo. 1986) (listing cases). It identified two factors

to consider in determining whether to disqualify a prosecutor in such a case: (1)

whether the accused had an attorney-client relationship with the prosecutor; and

(2) whether there is any evidence that the prosecutor actually received

confidential information from or about the accused. Id.

Here, the Appellants make only conclusory allegations that they had an

attorney-client relationship with Ms. Grundy. There is no evidence that Mr.

Pruyne or any defendant imparted confidential information to Ms. Grundy

regarding the Appellants. Mr. Pruyne applied for and obtained DOJ

representation for the three Bivens actions filed against him prior to the

prosecution of the instant case. There is no evidence to suggest that Mr. Pruyne

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communicated confidential information to Ms. Grundy on any topic other than the

subject of those Bivens actions. The three inmates who filed those suits were not

victims of the conspiracy alleged in the indictment against the Appellants. In

other words, the Appellants have failed to establish that they were in any way

prejudiced by Ms. Grundy’s participation in their prosecution. We therefore hold

that the Appellants suffered no constitutional defect in their trials. 6

B. Jury Instructions

The Appellants raise several claims of error with respect to the instructions

given to the jury. First, they argue that the District Court erred in instructing the

jury on the elements of both the conspiracy and substantive offenses. We review

jury instructions in their entirety under a de novo standard of review. United

States v. Laughlin, 26 F.3d 1523, 1528 (10th Cir. 1994). “In so doing, we

analyze, in light of the record, whether the instructions state the governing law

and whether the jury was provided an intelligent, meaningful understanding of the

applicable issues and standards.” Id. We will reverse only if we have

“substantial doubt that the jury was fairly guided.” United States v. Smith, 13

F.3d 1421, 1424 (10th Cir. 1994) (quotation omitted). Where no objection was

6
To echo the words of United States v. Bolton, 905 F.2d 319, 322 (10th Cir.
1990), “[w]e cannot fathom the obdurate persistence of the prosecution in keeping
[Ms. Grundy] on this case. The decision, in the face of objection . . . is, to say
the least, aberrant. The exercise of a modicum of prudence on the part of the
prosecutor would have made consideration of this issue on appeal completely
unnecessary.”

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made below, however, we review only for plain error. United States v. Ellzey,

936 F.2d 492, 500 (10th Cir. 1991).

1. 18 U.S.C. § 241: Conspiracy Against Rights

18 U.S.C. § 241 prohibits two or more people from conspiring “to injure,

oppress, threaten, or intimidate any person in any State, Territory,

Commonwealth, Possession, or District in the free exercise or enjoyment of any

right or privilege secured to him by the Constitution or laws of the United States,

or because of his having so exercised the same.” After reading the statute to the

jury, the District Court instructed it that there were four necessary elements to

prove conspiracy. Instruction No. 33 stated in part:

ONE: The defendant whose case you are considering entered
into a conspiracy with one or more persons to injure,
oppress, threaten or intimidate inmates.
TWO: The conspiracy was directed at the deprivation of a right
which is secured or protected by the Constitution or laws
of the United States, here, the right not to be subjected
to cruel and unusual punishment.
THREE: The defendant acted willfully to deprive inmates of such
right.
FOUR: The defendant acted under color of law.

If you should find from your consideration of all the evidence as to
each defendant that any of these elements has not been proved . . .
beyond a reasonable doubt, then you should find the defendant not
guilty.

The District Court then elaborated on each element of the crime. Four

subsequent instructions expanded upon the first element and described what it

meant to be part of a conspiracy. In addition, Instruction No. 39 informed the

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jury that the words “injure,” “oppress,” “threaten,” or “intimidate,” “are not used

in any technical sense but may cover a variety of conduct intended to harm,

frighten, prevent, or punish the free action of other persons.”

Instruction No. 40 elaborated on the second element—that the conspiracy

must be directed at the deprivation of the constitutional right to be free from cruel

and unusual punishment. It provided that “the unnecessary and wanton infliction

of pain constitutes cruel and unusual punishment” and whether the action taken by

the defendant amounts to such conduct “turns on whether the force was applied in

a good-faith effort to maintain or restore discipline or maliciously and sadistically

for the very purpose of causing harm.” It further provided that “[f]actors to be

considered in making the determination include the extent of injury suffered by an

inmate, the need for the application of force, the relationship between that need

and the amount of force used, the threat reasonably perceived by the person using

force on the inmate, and any efforts made to temper the severity of a forceful

response.”

Messrs. LaVallee and Schultz 7 argue that use of certain statutory language

in the above instructions is inconsistent with and dilutes the constitutional

standard for determining whether there has been a conspiracy to deprive an

inmate of his Eighth Amendment rights. Specifically, they argue that the words

7
Only Mr. LaVallee and Mr. Schultz complain of the 18 U.S.C. § 241
instruction; Mr. Verbickas was not convicted on that charge.

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“injure, oppress, threaten, or intimidate,” which appear in 18 U.S.C. § 241 and

Instructions Nos. 33 and 39, allowed a reasonable jury to infer that something less

than the “unnecessary and wanton infliction of pain” is sufficient to convict,

which is inconsistent with Hudson v. McMillan, 503 U.S. 1 (1992). In other

words, their argument is that the language confused the jury and permitted it to

convict based on a finding that a defendant conspired to threaten or intimidate

inmates, not that he conspired to violate their Eighth Amendment rights. Cf.

United States v. Kozminski, 487 U.S. 931 (1988) (reversing convictions because

instruction alleging conspiracy to deprive individuals of their Thirteenth

Amendment right to be free from involuntary servitude pursuant to 18 U.S.C.

§ 241 allowed for conviction based upon psychological coercion which is not

prohibited by the Thirteenth Amendment or the statute enacted to enforce it).

After reviewing the jury instructions in their entirety, it is clear that a jury

could not convict on the conspiracy charge unless it found that the conspiracy was

directed at depriving the inmates of their Eighth Amendment right. Instruction

No. 33 provided that if the Government did not prove “any of these elements” it

must find the defendant under consideration not guilty. See United States v.

Almaraz, 306 F.3d 1031, 1037 (10th Cir. 2002) (stating that the court presumes

“jurors attend closely to the language of instructions in a criminal case and follow

the instructions given to them”). The same instruction provided that the

conspiracy to injure, oppress, threaten, or intimidate must be “directed at the

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deprivation of a right which is secured or protected by the Constitution or laws of

the United States, here, the right not to be subjected to cruel and unusual

punishment.” Further, Instruction No. 40 correctly prescribed the scope of

protection under the Eighth Amendment, stating that “the unnecessary and wanton

infliction of pain constitutes cruel and unusual punishment.” Hudson, 503 U.S. at

5 (quotations, alteration, and citations omitted); see also Kozminski, 487 U.S. at

952–53 (holding that for purposes of prosecution under § 241 for subjecting an

individual to involuntary servitude, the jury must be instructed that involuntary

servitude is the compulsion of services by the use or threatened use of physical or

legal coercion). Instruction No. 39 merely elaborated on the first element—that

is, what it meant to be involved in a conspiracy. After reaching a conclusion on

that element of the crime, the jury also had to conclude that the object of the

conspiracy was to deprive an inmate of his Eighth Amendment right, as defined

by the instructions. That the individual instructions explaining the language

“injure, oppress, threaten or intimidate” did not explicitly reference the scope of

the constitutional right at issue did not confuse the jury as to their task. Rather,

as the District Court found, the approach was designed to minimize confusion.

The court stated, “What you’re really asking me to do is to put in every

instruction everything that’s in every other instruction so the instructions would

in effect be so confusing that no one would ever understand what they mean, and

I reject that.” We agree. The instructions were consistent with the legal standard

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for conspiracy to deprive a person of his Eight Amendment right.

2. 18 U.S.C. § 242: Deprivation of Rights Under Color of Law

18 U.S.C. § 242 prohibits a person acting “under color of any law, statute,

ordinance, regulation, or custom, [to] willfully subject[] any person in any State,

Territory, Commonwealth, Possession, or District to the deprivation of any rights,

privileges, or immunities secured or protected by the Constitution or laws of the

United States.” After reading the statute to the jury, the District Court instructed

it that there were four necessary elements to prove the deprivation of rights under

§ 242. Instruction No. 47 stated:

ONE: The defendant whose case you are considering deprived
an inmate or inmates of a right which is secured or
protected by the Constitution of the United States;
namely the right not to be subjected to cruel and unusual
punishment;
TWO: The defendant acted willfully to deprive the inmate of
such right;
THREE: The defendant acted under the color of law;
FOUR: The inmate suffered bodily injury as a result of the
defendant’s conduct.

The Appellants first complain that the District Court did not include a

cautionary instruction that the de minimis use of physical force does not

constitute cruel and unusual punishment in violation of the Eighth Amendment.

The Appellants did not raise this objection to the District Court, and accordingly

we review only for plain error.

In Hudson, the Supreme Court established that a de minimis use of force,

-21-
unless it is of a sort “repugnant to the conscience of mankind,” does not violate

the Eighth Amendment’s prohibition of cruel and unusual punishment. 503 U.S.

at 9–10 (quotation omitted). Though the jury instructions did not make this fact

clear, the Appellants have failed to establish plain error. First, Instruction No.

40, described above, helps to resolve any confusion regarding the proof needed to

establish a violation of § 242. It provided that “the unnecessary and wanton

infliction of pain constitutes cruel and unusual punishment” and that the jury

should consider the relationship between the amount of force used and the need

for such force. This instruction tends to exclude the possibility of a conviction

based on a de minimis use of force. Second, there was no dispute at trial about

whether the force used by the Appellants was de minimis. To the contrary, the

Government presented evidence that Mr. LaVallee and Mr. Schultz punched Mr.

Castillo in the back numerous times while he was restrained and compliant; Mr.

Mitchell testified that the sound of the blows could be heard in another room

fifteen to twenty feet away. The Government also presented evidence that Mr.

Verbickas punched Mr. Lane while he was restrained and compliant, then picked

him up off the floor waist-high and dropped him on his face, causing blood to

spill from his lip. The Appellants never challenged this testimony on the basis

that the force applied was de minimis; rather, they argued that they did not

commit the acts at all. On this evidence, there was no occasion for the jury to

consider whether the force used was de minimis. Thus the District Court did not

-22-
plainly err in failing to give such an instruction sua sponte.

Next, the Appellants claim that the jury instructions permitted the jury to

convict if it found that the inmates suffered only de minimis injuries which, they

argue, is prohibited by the “unnecessary and wanton infliction of pain” standard

set forth in Hudson. Section 242 makes “it criminal to act (1) ‘willfully’ and (2)

under color of law (3) to deprive a person of rights protected by the Constitution

or laws of the United States.” Lanier v. United States, 520 U.S. 259, 264 (1997).

If these elements are met, and if bodily injury (but not death) results from the

willful deprivation of the constitutional right, the defendant is subject to a

sentencing enhancement of up to ten years. 18 U.S.C. § 242. The Appellants

argue that the Eighth Amendment is not violated if the inmates only suffered de

minimis injuries. As such, they claim that Instruction No. 48, which defined

“bodily injury” for purposes of the sentencing enhancement as “(1) a cut,

abrasion, bruise, burn, or disfigurement; (2) physical pain; (3) illness; (4)

impairment of the function of a bodily member, organ, or mental faculty; or (5)

any other injury to the body no matter how temporary,” misled the jury and

allowed them to convict if they found merely de minimis injuries, such as a small

cut or exceedingly temporary injury. 8

8
The Appellants do not argue that “bodily injury” as defined in Instruction
No. 48 was a misstatement of the law as it applies to the sentencing enhancement.
Nor do they dispute that bodily injury resulted.

-23-
 Hudson explained that “the extent of injury suffered by an inmate is [but]

one factor that may suggest” whether the force applied was necessary or wanton,

id. at 7, and the Court explicitly rejected a requirement that inmates show a

“significant injury” to state a claim for excessive force in violation of the Eighth

Amendment. Id at 5. Several circuits have held, however, that there has been no

excessive force in violation of the Eighth Amendment when an inmate suffers

only de minimis injuries. See, e.g., Siglar v. Hightower, 112 F.3d 191, 193 (5th

Cir. 1997); Norman v. Taylor, 25 F.3d 1259, 1263 (4th Cir. 1994) (en banc).

Those courts draw a negative inference from the statement in Hudson that “the

blows directed at Hudson, which caused bruises, swelling, loosened teeth, and a

cracked dental plate, are not de minimis for Eighth Amendment purposes. The

extent of Hudson’s injuries thus provides no basis for dismissal of his § 1983

claim.” Norman, 25 F.3d at 1262 (quoting Hudson, 503 U.S. at 10). In other

words, they infer from this statement that merely “de minimis injury can serve as

conclusive evidence that de minimis force was used.” Id. We reject this view.

In Hudson, the Court explained:

In the excessive force context, . . . [w]hen prison officials
maliciously and sadistically use force to cause harm, contemporary
standards of decency always are violated. This is true whether or not
significant injury is evident. Otherwise, the Eighth Amendment
would permit any physical punishment, no matter how diabolic or
inhuman, inflicting less than some arbitrary quantity of injury. Such
a result would have been as unacceptable to the drafters of the Eighth
Amendment as it is today.

-24-
503 U.S. at 9 (internal citations omitted). It further explained that in determining

whether the use of force was wanton and unnecessary,

it may also be proper to evaluate the need and the amount of force
used, the threat ‘reasonably perceived by the responsible officials,’
and “any efforts to temper the severity of a forceful response.” The
absence of a significant injury is therefore relevant to the Eighth
Amendment inquiry, but does not end it.

Id. at 7 (quotations omitted) (emphasis added).

Therefore, we agree with the Third Circuit that in Hudson, the Supreme

Court evidenced its “commit[ment] to an Eighth Amendment which protects

against cruel and unusual force, not merely cruel and unusual force that results in

sufficient injury.” Brooks v. Kyler, 204 F.3d 102, 108 (3d Cir. 2000) (emphasis

omitted); see also Hudson, 503 U.S. at 13 (Blackmun, J., concurring) (stating that

“[t]he Court today appropriately puts to rest a seriously misguided view that pain

inflicted by an excessive use of force is actionable under the Eighth Amendment

only when coupled with ‘significant injury,’ e.g., injury that requires medical

attention or leaves permanent marks.”). A contrary holding would mean that “a

prisoner could constitutionally be attacked for the sole purpose of causing pain as

long as the blows were inflicted in a manner that resulted in visible (or palpable

or diagnosable) injuries that were de minimis.” Brooks, 204 F.3d 108. We

therefore hold that the government need not prove that an individual suffered a

certain level or type of injury to establish excessive force in violation of the

Eighth Amendment and 18 U.S.C. § 242.

-25-
 In so holding, we recognize that the degree of injury may be highly relevant

to the determination of the unreasonableness of the force used. But we decline to

adopt a rule today, which we believe would be inconsistent with Hudson, that

permits an officer to beat an inmate so long as the resulting injuries are neither

permanent nor require medical attention. Accordingly, we conclude that the jury

instructions did not mislead the jury as to the applicable law.

3. Supplemental Instruction

After approximately eight weeks of testimony, the case was submitted to

the jury. The jury deliberated for ten days, at which point the district court judge

called the jury into the courtroom and reread Instruction No. 29, which provided

in relevant part:

A separate crime is alleged in each count of the indictment. Under
these instructions, you may find that [sic] one or more of the
defendants guilty or not guilty as charged. At any time during
deliberations, you may return into court with your verdict of guilty or
not guilty as to any defendant concerning whom you have
unanimously agreed.

The court went on to state:

What I’m ordering you to do is to the extent, consistent with
Instruction No. 29 and all of the other instructions that you have
received and presumably read, if you have reached a verdict of either
guilty or not guilty as to the defendant, I’m ordering you to put that
verdict, if you’ve reached it, into an envelope, and we will seal that
envelope and . . . write the words [“]this is the verdict for defendant
blank[”] and then each of you would then sign the envelope and . . .
return[] [it] to Mr. Keech [the courtroom deputy] for safekeeping. It
will not be returned to me because I don’t want to see it.

-26-
 And so that’s what I’m directing you to do. And I want to reiterate, I
want you to do that only if . . . you have reached a verdict of guilty
or not guilty as to any defendant concerning whom you have
unanimously agreed.

If you have not reached a unanimous agreement, then you don’t have
to do anything. And if you have reached a unanimous agreement,
then I’m instructing you to do what I just said.

The jury sealed five verdicts in envelopes that day, including the guilty verdict as

to Mr. Verbickas, and two more verdicts after several hours of deliberation the

following day, including the guilty verdicts as to Messrs. Schultz and LaVallee.

The Appellants argue that this instruction is error for two reasons. First,

they argue that it is an Allen charge 9 that impermissibly coerced the jury’s

verdicts. Second, they argue that the District Court abused its discretion by

instructing the jury to return partial verdicts as it improperly invaded the province

of the jury regarding how it conducted deliberations. We address each argument

in turn. 10

a. Allen Charge

An Allen charge is “a supplemental instruction given to the jury and

designed to encourage a divided jury to agree on a verdict.” United States v.

9
See Allen v. United States, 164 U.S. 492 (1896).

To the extent that the Appellants argue that the supplemental instruction
10

should not have been given at all, we find that the District Court, concerned about
the length of deliberations, did not abuse its discretion in so doing. See United
States v. McElhiney, 275 F.3d 928, 940 (10th Cir. 2001) (stating that whether to
give an instruction at all is within the sound discretion of the trial court).

-27-
Zabriskie, 415 F.3d 1139, 1147 (10th Cir. 2005). When an Allen charge “imposes

such pressure on the jury such that the accuracy and integrity of their verdict

becomes uncertain,” it violates a defendant’s right to due process and Sixth

Amendment rights to an impartial jury trial and to a unanimous verdict. Id. at

1148.

The District Court’s instruction in this case is not a typical Allen charge.

Generally, such an instruction urges deadlocked jurors to “review and reconsider

the evidence in the light of the views expressed by other jurors” so as to avoid a

mistrial. Darks v. Mullin, 327 F.3d 1001, 1013 (10th Cir. 2003). Nonetheless,

this Court must determine whether the supplemental charge improperly coerced a

jury verdict. Id.; McElhiney, 275 F.3d at 941. Factors to consider in determining

whether a supplemental instruction coerced a verdict include: “(1) the language of

the instruction, (2) whether the instruction is presented with other instructions, (3)

the timing of the instruction, and (4) the length of the jury’s subsequent

deliberations.” Darks, 327 F.3d at 1013 (quotations omitted).

In the first part of the inquiry, this Court asks whether the language of the

instruction is “coercive, or merely the proper exercise of [the district court

judge’s] common law right and duty to guide and assist the jury toward a fair and

impartial verdict.” United States v. Arney, 248 F.3d 984, 988 (10th Cir. 2001)

(quotations omitted). There is nothing inherently coercive about the language

used by the District Court. Although the instruction lacked protective language

-28-
assuring jurors holding the minority position that they were not required to

relinquish firmly held convictions, it did not include any language asking jurors

to reconsider their views and to change them if they believed they were wrong; it

did not press hold-out jurors to yield to the majority position; and it did not

impose any time restrictions on the deliberations. See Darks, 327 F.3d at 1014;

see also Arney, 248 F.3d at 988 (an instruction directed at all jurors, rather than

only those holding the minority view, reduces the possibility of coercion).

Further, though the District Court “ordered” and “directed” the jury to seal any

unanimous decisions—guilty or not guilty—in a sealed envelope while they

continued to deliberate on the remaining defendants, it did not instruct them to

reach a unanimous verdict as to any remaining defendants or charges. In fact, the

District Court emphasized that they “don’t have to do anything” if the jurors had

not reached a unanimous decision.

The Appellants argue that the absence of cautionary language to ameliorate

the coercive effect of the supplemental instruction—such as reminding jurors that

they should not surrender their conscientiously held convictions and that the

burden of proof belongs to the Government—makes this instruction per se

coercive. To this end, they cite our opinion in United States v. McElhiney, in

which this Court stated that it “has never . . . approved of an Allen charge that

failed to incorporate an admonition regarding the juror’s conscientiously held

convictions.” 275 F.3d 928, 943 (10th Cir. 2001). Despite the Appellants’

-29-
assertions to the contrary, however, McElhiney did not spell out a per se rule

regarding coercion. Instead, we found that the absence of cautionary language in

that case meant that the coercive effect of the instruction was “substantially

heightened.” See id. at 944. Here, however, we harken back to the language of

the particular instruction and find that it was not inherently coercive. 11

In the next two steps of the analysis, we consider the timing of the

instruction and whether it was presented with other instructions. While the

preferred practice is to give an Allen charge prior to jury deliberations and along

with other instructions, there is no per se rule against giving an Allen charge once

the jury has begun to deliberate. Arney, 248 F.3d at 988–89. In fact, this Court

has found on numerous occasions that Allen charges given during deliberations

were not unduly coercive. Id. at 989 (listing cases). Moreover, the District Court

called the jury in to give the instruction on the court’s own accord, before the jury

indicated that it was deadlocked, which makes this instruction less coercive.

See id.

Finally, we look at the subsequent length of jury deliberations once the

supplemental instruction has been given. There is a suggestion of coercion when

a jury returns a verdict soon after the supplemental instruction. Darks, 327 F.3d

11
We also note that since our decision in McElhiney, we have approved of
at least one Allen charge that did not contain the recommended cautionary
language. See Darks, 327 F.3d 1014 (jury not coerced in returning death
sentence).

-30-
at 1016. In this case, the jury resumed deliberations after receiving the

instruction at 4:00 p.m. Within the hour, the jury had sealed five verdicts in

envelopes. The jury was then excused for the day and they reconvened the next

morning. After approximately five to six hours of deliberation that day, they

reached verdicts on the remaining counts. Because the verdict forms were dated,

the record is clear that the verdicts the jury put into envelopes shortly after the

instruction included complete acquittals for four of the defendants, and a guilty

verdict as to Mr. Verbickas on one count and acquittals on the remaining counts.

The verdicts returned the following day convicted Mr. LaVallee and Mr. Schultz

of two counts each and acquitted them of the other counts. In this case, because

the jury had not indicated that it was deadlocked as to any of the defendants, it is

reasonable to conclude that the jury had already reached unanimous decisions as

to the five verdicts sealed on June 23, even before the instruction was

given—indeed, the jury had already deliberated for ten days at that point. In

addition, it was almost a full day later that the jury reached verdicts as to Messrs.

Schultz and LaVallee. See Darks, 327 F.3d at 1016 (upholding verdict returned

twenty minutes after the challenged instruction). After viewing the supplemental

instruction in light of the totality of the circumstances, we conclude that it was

not coercive and therefore did not deny the Appellants their rights to a fair trial,

an impartial jury, and a unanimous verdict.

b. Partial Verdict Instruction

-31-
 In trials with multiple defendants, Fed. R. Crim. P. 31(b) permits a jury to

return a verdict at any time during its deliberations as to any defendant about

whom it has unanimously agreed. The Appellants argue that the supplemental

instruction “ordering” the jurors to seal verdicts in envelopes improperly invaded

the province of the jury regarding how it conducted deliberations. We review

submission of supplemental jury instructions once the jury has retired for an

abuse of discretion. United States v. Arias-Santos, 39 F.3d 1070, 1075 (10th Cir.

1994).

The District Court, in giving its supplemental instruction, initially repeated

the language of Instruction No. 29, but it then altered that language by ordering

the jury to seal any unanimous verdicts it had already reached. In other words,

unlike Instruction No. 29, which afforded the jury discretion as to whether or not

to return any partial verdicts, the supplemental instruction effectively removed

that discretion by directing the jury to return any partial verdicts that had been

reached at that point. Thus, the supplemental instruction clearly had the potential

to infringe on the jury’s discretion to decide for itself what deliberative process to

utilize and undoubtedly infringed on the jury’s discretion to decide when, if at all,

to report a partial verdict. See United States v. DiLapi, 651 F.2d 140 (2d Cir.

1981) (discussing right of jury to return partial verdict in multi-defendant trial).

We therefore hold that giving such an instruction was error. Nevertheless, we

need not remand if we conclude that the error was harmless beyond a reasonable

-32-
doubt. See Stiger, 413 F.3d at 1191 (potential error in verdict form did not

warrant remand when any error did not affect the outcome of the trial).

The Appellants argue that the partial verdict instruction had the same effect

as an Allen instruction, i.e., improperly coercing the jury to reach a verdict as to

the charges still being deliberated at the time the District Court gave the

supplemental instruction. We concluded above that this instruction did not coerce

the jury’s verdict. As such, we hold that the District Court’s error in giving the

supplemental instruction was harmless beyond a reasonable doubt.

C. Cumulative Error

The Appellants argue that they were denied their due process right to

fundamental fairness through the combined effect of three discovery errors and

thirteen errors in admitting testimony. A cumulative error analysis aggregates all

the errors that individually are harmless, and therefore not reversible, and

“analyzes whether their cumulative effect on the outcome of the trial is such that

collectively they can no longer be determined to be harmless.” United States v.

Rivera, 900 F.2d 1462, 1470 (10th Cir. 1990) (en banc). “Only actual errors are

considered in determining whether the defendant’s right to a fair trial was

violated.” United States v. Toles, 297 F.3d 959, 972 (10th Cir. 2002).

1. Discovery Rulings

Ms. Gutierrez was one of the Government’s principal witnesses for both the

conspiracy and assault charges. In March 2002, more than a year before trial

-33-
commenced, Mr. Verbickas filed a motion for the production of Ms. Gutierrez’s

psychiatric records to be used during cross-examination as impeachment

evidence. The District Court denied the motion because the documents requested

were privileged and the defendants cited no relevant authority to suggest that

privileged documents were subject to discovery for purposes of cross-

examination. 12 The Appellants argue that this ruling violated their Sixth

Amendment right to confront witnesses against them. See Delaware v. Fensterer,

474 U.S. 15, 18–19 (1985) (per curium) (stating that the right to confront a

witness includes the right to conduct cross-examination).

The Appellants have failed to provide this Court with any relevant authority

suggesting that the Confrontation Clause permits them to discover the privileged

medical records of an adverse witness. Even so, we undertook our own review of

the case law and find that the Appellants’s Sixth Amendment rights were not

implicated by the District Court’s order.

The Confrontation Clause is not a “constitutionally compelled rule of

pretrial discovery.” Pennsylvania v. Ritchie, 408 U.S. 39, 51 (1987). In rejecting

the defendant’s claim that the trial court’s refusal to permit discovery of

12
The District Court also denied the motion because the motion was
improperly filed under Fed. R. Crim. P. 17(c), rather than the general discovery
statute, Fed. R. Crim. P. 16. See Bowman Dairy Co. v. United States, 341 U.S.
214, 219 (1951) (stating that Rule 17(c) is not intended to provide a means of
discovery for criminal cases).

-34-
privileged communications by his accuser to be used during cross-examination

violated his right to confront witnesses against him, the Court in Ritchie stated:

[T]he right to confrontation is a trial right, designed to prevent
improper restrictions on the types of questions that defense counsel
may ask during cross-examination. The ability to question adverse
witnesses, however, does not include the power to require the pretrial
disclosure of any and all information that might be useful in
contradicting unfavorable testimony. Normally the right to confront
one's accusers is satisfied if defense counsel receives wide latitude at
trial to question witnesses. In short, the Confrontation Clause only
guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to whatever
extent, the defense might wish.

Id. (citations, quotation marks, and footnote omitted). There is no indication in

this case that the Appellants did not have the opportunity to cross-examine Ms.

Gutierrez effectively. Indeed, the District Court did not appear to limit the scope

of questions that the defendants could ask Ms. Gutierrez on cross-examination.

Thus, there has been no Sixth Amendment violation.

The Appellants’ next claim of error in discovery relates to alleged promises

made by the Government to Ms. Gutierrez in exchange for her testimony at trial.

Specifically, the Appellants point out that Ms. Gutierrez pleaded guilty to

violating 18 U.S.C. § 242, which the District Court considered to be a “crime of

violence.” Nevertheless, she was released pending sentencing, which is only

permitted pursuant to 18 U.S.C. § 3143(a)(2) when the court “finds by clear and

convincing evidence that the person is not likely to flee or pose a danger to any

other person or the community” and either “there is a substantial likelihood that a

-35-
motion for acquittal or new trial will be granted[,] or an attorney for the

Government has recommended that no sentence of imprisonment be imposed on

the person.” 18 U.S.C. § 3143(a)(2); see also 18 U.S.C. § 3142(f)(1)(A)

(including crimes of violence in subsection (A)). According to the Appellants, an

off-the-record colloquy took place between Ms. Gutierrez and her counsel, the

magistrate judge, and the Government. The Appellants claim that the District

Court made a discovery ruling prohibiting them from discovering the substance of

this conversation and that such ruling violated their due process rights under

Giglio v. United States, 405 U.S. 150, 154 (1972).

We decline to review this claim of error. In addition to failing to supply

relevant legal authority, 13 the Appellants fail to cite to references in this ninety-

volume, ten-thousand-page transcript where this issue was raised and ruled upon

below. See 10th Cir. R. 28.2(C)(2) and (3); United States v. LaHue, 261 F.3d

993, 1014–1015 (10th Cir. 2001). Due to these failures, this court cannot even

attempt to assess the merits of this argument.

Appellants next argue that the District Court erred in refusing to permit

them to discover the substance of an interview by the Government of Mr. Britt.

Mr. Britt was twice interviewed by the Government prior to giving testimony in

13
The Government correctly points out that the cases upon which the
Appellants rely, United States v. Brady, 373 U.S. 83 (1963) and Giglio, 405 U.S.
150, relate to the Government’s suppression of evidence, not a district court’s
erroneous evidentiary rulings.

-36-
this case. One interview was reduced to writing; the other was not. After direct

and cross-examination of Mr. Britt, counsel for Mr. Verbickas sought permission

from the District Court to put Mr. Britt back on the witness stand to determine

whether a second statement was in fact recorded. The District Court asked the

Government whether there were any other written statements, to which Mr.

Blumberg said no. The court then instructed the defendants to file a written

motion to recall Mr. Britt to the stand. There is nothing in the record indicating

that any of the defendants filed such motion. Therefore, any error appears to be

that of the Appellants.

Finally, the Appellants argue that the District Court erred in refusing to

allow Mr. Verbickas’s counsel to cross-examine Mr. Britt as to whether he knew

of Mr. Lane’s history of violence. Mr. Britt testified on direct that Mr.

Verbickas’s use of force against Mr. Lane was excessive and contravened the

BOP “Use of Force” policy. Counsel for Mr. Verbickas cross-examined Mr. Britt

and asked him detailed questions about his knowledge of Mr. Lane’s history of

violence. After a while, the Government objected on the grounds that Mr.

Verbickas’s counsel was, in effect, testifying about Mr. Lane’s violent

background. The District Court sustained the objection in part, permitting

counsel to “ask the witness if he has any knowledge about why Lane was at [a

medical facility], without your question revealing why he was there.” The court

further stated, “I’m not foreclosing this evidence, but I’m foreclosing it through a

-37-
witness that doesn’t know anything about it.” The Appellants argue that this

prohibited the jury from evaluating the basis of Mr. Britt’s testimony that Mr.

Verbickas’s use of force was excessive. We conclude that this argument has no

merit. The District Court did not prevent the Appellants from asking about Mr.

Britt’s foundation for his testimony.

2. Evidentiary Rulings

The Appellants make several additional objections on appeal that relate to

Ms. Gutierrez’s testimony. First, they argue that the Government improperly

asked her two leading questions. Only one of these questions was objected to,

however, and the District Court sustained the objection before Ms. Gutierrez

could answer the question. In addition, the Appellants argue that the District

Court erred in prohibiting testimony regarding a purported prior inconsistent

statement made by Ms. Gutierrez. Specifically, the Appellants argue that after

Ms. Gutierrez testified about inmate abuse at USP-Florence, the court should have

permitted them to call Lieutenant Mark Mooneyham to testify that Ms. Gutierrez

had, in fact, previously told him that she had no knowledge of inmate abuse at

USP-Florence and that Mr. Blumberg threatened that she might lose custody of

her children if she did not cooperate with the Government’s investigation. During

her testimony, however, Ms. Gutierrez admitted that she had previously made that

statement to Mr. Mooneyham. The District Court ruled that Ms. Gutierrez’s

testimony was consistent with what Mr. Mooneyham would testify to and

-38-
therefore Fed. R. Evid. 613(b) did not apply. We find no error in any of these

rulings. 14

Next, the Appellants argue that the Government improperly elicited

testimony that they had reputations for violent behavior. They complain of the

following colloquy between Mr. Blumberg and Raymond Holt, the warden at

USP-Florence:

Q: Did you obtain information—excuse me. Did you learn the
reputation of individuals or the character of being unnecessarily
violent relating to certain correctional officers at Florence?

A: Yes.

Q: Did you learn that reputation for a correctional officer named Rod
Schultz?

A: Yes.

[Mr. Schultz’s counsel objected and the objection was overruled.]

Q: Did you learn that reputation for a correctional officer named
Mike LaVallee?

A: Yes.

Q: Did you learn that reputation for a correctional officer named Ken
Shatto?

A: Yes.

The Appellants also object to a question asked by Mr. Blumberg on re-
14

direct examination as to whether Ms. Gutierrez had ever met Mr. LaVallee’s
attorney in the presence of the defendants. We discuss this question infra in
section IV and conclude that permitting the question did not constitute error.

-39-
 Q: Did you learn that information related to a correctional officer
named David Pruyne?

A: Yes.

Q: Did you learn that information regarding a correctional officer
named Robert Verbickas?

A: Yes.

....

Q: What was that reputation for those people that you learned prior
to coming to Florence?

The defendants objected to the last question and the jury was excused while

the court determined whether it would permit Mr. Holt to answer. Ultimately, the

District Court barred admission of the reputation testimony pursuant to Fed. R.

Evid. 403.

Appellants argue that Mr. Holt’s affirmative responses to the prosecutor’s

initial questions is reputation testimony that violated Fed. R. Evid. 404(b). Rule

404(b), however, relates to evidence of other crimes, wrongs, or acts. In other

words, it applies to specific instances of conduct. The challenged questions, on

the other hand, refer to defendants’ reputations for violent behavior, not to any

specific instances of conduct, and therefore Rule 404(b) is not implicated. We

also question whether this testimony is reputation testimony at all. Mr. Holt

merely testified that he had information about whether each Appellant had a

reputation for unnecessarily violent behavior; he did not testify as to what that

-40-
reputation was, i.e., that any Appellant had a violent or nonviolent reputation.

This question was necessary to establish foundation for the follow-up question.

Indeed, the court sustained the Appellants’ objection as to that question, and the

jury never heard Mr. Holt’s answer. We therefore find no abuse of discretion in

the admission of such testimony. 15

The Appellants raise nine other alleged errors in admitting testimony. For

these claimed errors, they either fail to identify the statements which they contend

were wrongly admitted, fail to meet this court’s modest requirement that an

appellant provide citations to the record where these statements might be found,

or fail to provide argument or legal authority for these alleged errors. Due to

these failures, we decline to assess the merits of these arguments. United States

v. McClatchey, 217 F.3d 823, 825–26 (10th Cir. 2000).

In sum, we have found no error in any of the District Court’s discovery and

evidentiary rulings. We therefore conclude the Appellants’s assertion that the

cumulative impact of errors deprived them of a fair trial is without merit.

IV. ADDITIONAL ISSUES RAISED BY MR. LAVALLEE

Mr. LaVallee argues that Mr. Blumberg engaged in several instances of

prosecutorial misconduct that fatally infected his trial. During trial, Mr.

15
The Appellants also argue that this testimony was hearsay that violated
the Sixth Amendment’s Confrontation Clause. This argument is without merit, as
it is clear that the testimony was not hearsay.

-41-
Blumberg made several references to Mr. LaVallee’s attorney, Thomas

Hammond. Mr. LaVallee argues that these references permitted the jury to draw

an adverse inference from the fact he exercised his Sixth Amendment right to

counsel and that therefore his conviction should be reversed. See United States v.

Liddy, 509 F.2d 428, 442–445 (D.C. Cir. 1974).

Allegations of prosecutorial misconduct are mixed questions of law and

fact which we review de novo. Duckett v. Mullin, 306 F.3d 982, 988 (10th Cir.

2002). When the defendant makes a timely motion for a mistrial based on

prosecutorial misconduct, we review the district court’s decision for an abuse of

discretion. United States v. Meienberg, 263 F.3d 1177, 1180 (10th Cir. 2001).

We will not reverse a conviction on the basis of a prosecutor’s improper

statement to the jury unless there is reason to believe that it influenced the jury’s

verdict. Meienberg, 263 F.3d at 1180. In assessing whether the misconduct had

such an impact, we look to the curative acts of the district court, the extent of the

misconduct, and the role of the misconduct within the case as a whole. Id.

Mr. Blumberg first made reference to Mr. Hammond during redirect

examination of Ms. Gutierrez. During the exchange, Mr. Blumberg elicited

testimony from her that she had previously met Mr. Hammond at a meeting in the

company of the other defendants. Mr. Hammond objected, and the judge held a

sidebar conference. During the conference, Mr. Blumberg proffered that Ms.

Gutierrez would testify that after the meeting, certain defendants had a discussion

-42-
about not telling their attorneys the truth about the beatings. 16 The District Court

excused the jury, and Mr. Blumberg questioned Ms. Gutierrez on the issue. After

her testimony, the District Court found that Mr. Blumberg’s proffer at the sidebar

was contrary to what Ms. Gutierrez had just testified. The court therefore

disallowed the testimony to be relayed to the jury and sanctioned the Government

by prohibiting it from eliciting evidence about a conversation that Ms. Gutierrez

had with Mr. Schultz in which he told her not to tell her lawyer the truth about

what went on in the prison. The court, however, denied Mr. Hammond’s motion

for a mistrial based on the testimony Mr. Blumberg had succeeded in eliciting in

front of the jury—namely, that there had been a meeting among some defendants

and Mr. Hammond—because it found that testimony admissible since six of the

seven defense attorneys had asked Ms. Gutierrez on cross-examination whether

she had ever met with them before. Even so, when redirect examination resumed,

the District Court gave the jury a cautionary instruction to disregard any

testimony it had heard about that meeting. We conclude that because the jury

only heard unobjectionable testimony and was, in any event, instructed not to

consider it, the District Court did not abuse its discretion in denying Mr.

Hammond’s motion for a mistrial.

Mr. Blumberg reasoned that such testimony was relevant to whether the
16

defendants had willfully deprived the inmates of a constitutional right under 18
U.S.C. § 242.

-43-
 Mr. Blumberg again made reference to Mr. Hammond during cross-

examination of Mr. LaVallee. Mr. Blumberg asked whether Mr. LaVallee knew

that several murders took place at USP-Florence while he worked there, to which

Mr. LaVallee responded that he had no personal knowledge of such murders. Mr.

Blumberg asked, “Was that because you didn’t prepare for that [question] with

Mr. Hammond?” Mr. Hammond objected, arguing that the question was

improper, but he did not move for a mistrial. The District Court overruled the

objection. Mr. Blumberg later commented that defense counsel were “peddling”

defenses. Two attorneys objected to the question based on its characterization

and that it was argumentative. No defendant moved for a mistrial. 17

We need not tarry on whether these remarks constituted prosecutorial

misconduct because we are satisfied that they did not affect the trial’s outcome.

These two flippant remarks must be evaluated in the context of an eight-week

trial. This conduct, even if improper, was not “flagrant enough to influence the

jury to convict on grounds other than the evidence presented.” See Meienberg,

263 F.3d at 1180 (quotations omitted). As such, we conclude that any misconduct

was harmless beyond a reasonable doubt.

17
Mr. Blumberg also asked whether it was Mr. LaVallee’s belief that Ms.
Gutierrez’s lawyer had coordinated witness’s testimony. This reference to Ms.
Gutierrez’s attorney did not involve any adverse inference drawn from Mr.
LaVallee’s invocation of his right to counsel and we therefore do not address it
here.

-44-
 V. ADDITIONAL ISSUES RAISED BY MR. SCHULTZ

A. Sufficiency of the Evidence

Mr. Schultz argues that the Government lacked sufficient evidence to

support his conviction for deprivation of rights under color of law because the

testimony of Ms. Gutierrez and Mr. Mitchell was contradictory in several

respects. 18 Claims of insufficiency of the evidence are reviewed de novo. United

States v. Pulido-Jacobo, 377 F.3d 1124, 1129 (10th Cir. 2004). “Evidence is

sufficient to support a conviction if, viewing the evidence in the light most

favorable to the government, a reasonable jury could have found the defendant

guilty beyond a reasonable doubt.” United States v. Hien Van Tieu, 279 F.3d 917,

921 (10th Cir. 2002).

Mr. Schultz does not dispute that the witnesses, despite their disparate

recollection of non-material details, provided testimony which, if believed,

satisfied each element of the crimes for which he was convicted. Essentially,

then, Mr. Schultz’s argument amounts to an attack on Ms. Gutierrez’s and Mr.

Mitchell’s credibility. This argument must be rejected. “To the extent that the

evidence conflicts, we accept the jury’s resolution of conflicting evidence and its

assessment of the credibility of witnesses.” United States v. Owens, 70 F.3d

18
For instance, the witnesses had differing recollections about what the
abused inmate was wearing at the time of the abuse and the relative positions of
the other correctional officers in the cell.

-45-
1118, 1126 (10th Cir. 1995) (quotations omitted); see also United States v.

Washita Constr. Co., 789 F.2d 809, 816–17 (10th Cir. 1986) (rejecting sufficiency

of the evidence argument based on inconsistencies in testimony of government

witnesses).

B. Motion for a New Trial

1. Violations Under Brady v. Maryland and California v. Trombetta

Bureau of Prisons policy requires correctional officers routinely to

videotape any calculated use of force on an inmate. The warden reviews the

videotapes to ensure that the officers follow the appropriate procedures during the

use of force. The tapes are retained for up to two years and then destroyed in the

ordinary course of business. If an incident is serious and has been referred for

possible criminal investigation, the tape might be retained, placed into evidence,

and controlled more closely.

Beginning in July 2001, the defendants made several requests for the tapes

created on April 5 and 6, 1996 during forced-cell moves of Pedro Castillo, the

inmate whom Mr. LaVallee and Mr. Schultz were convicted of abusing. After

each request, the BOP responded that the tapes no longer existed. Mr. Schultz

made one last request for the tapes shortly before his sentencing. This time, the

Government responded to the request by producing the tape created on April 6,

1996, the day after the incident giving rise to Mr. Schultz’s and Mr. LaVallee’s

convictions.

-46-
 The tape shows Mr. Castillo slashing at his chest and legs, attempting to

draw blood. Mr. Schultz approaches the cell and instructs Mr. Castillo to put his

hands through the food gate so that he can be handcuffed. Mr. Castillo complies

and Mr. Schultz enters the cell to fasten a chain around Mr. Castillo’s waist. Mr.

Schultz then escorts Mr. Castillo to the x-ray room without incident. Mr. Schultz

moved for a new trial, arguing that the Government suppressed favorable and

material evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).

When the Government withholds evidence on demand of a defendant

which, if made available, would tend to exculpate him, it violates the due process

rights of that defendant. Brady, 373 U.S. at 87. The Government’s good faith is

not relevant. Id. While we ordinarily review a district court’s denial of a motion

for a new trial for an abuse of discretion, when the motion is based on an alleged

Brady violation, we review the district court’s decision de novo. See United

States v. Combs, 267 F.3d 1167, 1172 (10th Cir. 2001). To establish a Brady

violation, “a defendant must demonstrate (1) the prosecution suppressed

evidence,[ 19] (2) the evidence was favorable to defendant, and (3) the evidence

was material.” United States v. Quintanilla, 193 F.3d 1139, 1149 (10th Cir.

19
The “prosecution” for Brady purposes encompasses not only the
prosecutors handling the case, but also extends to law enforcement personnel and
governmental entities involved in investigative aspects of a particular criminal
venture. Smith v. Sec’y of N.M. Dept. of Corrs., 50 F.3d 801, 824 (10th Cir.
1995).

-47-
1999). There is no dispute in this case that the prosecution suppressed evidence

within the meaning of Brady. We therefore concentrate our analysis on the

remaining two factors.

Evidence is favorable to the defendant if it constitutes either exculpatory or

impeachment evidence. Smith v. Sec’y of N.M. Dept. of Corrs., 50 F.3d 801, 825

(10th Cir. 1995). Mr. Schultz argues that the evidence is favorable to him

because it shows Mr. Castillo cutting at his chest and legs to draw blood.

According to Mr. Schultz, this casts doubt on the Government’s theory of the

case—that the defendants fabricated a reason to move Mr. Castillo from his cell

to beat him—and supports his defense that Mr. Castillo was in fact trying to

injure himself the previous day. He also argues that it is favorable because it

shows Mr. Schultz and Mr. Castillo interacting without incident. The

Government counters that this tape does not rebut their theory of the

case—inmate Castillo was a known self-mutilator and the Government’s theory

was that the defendants falsely claimed that he had been cutting himself on April

5 precisely because it was a plausible explanation for entering his cell. In this

regard, the tape is consistent with the Government’s evidence. We need not

conclusively resolve whether this evidence was favorable to Mr. Schultz,

however, because we find that it was not material to his guilt.

Evidence is material to the defendant if it creates a “reasonable probability

that, ‘had the evidence been disclosed to the defense, the result of the proceeding

-48-
would have been different.’” Scott v. Mullin, 303 F.3d 1222, 1230 (10th Cir.

2002) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). “A

‘reasonable probability’ is a ‘probability sufficient to undermine confidence in the

outcome.’” Id. (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).

Mr. Schultz argues that there is a reasonable probability that had the videotape

been disclosed he would have been acquitted because it defies common sense to

believe that Mr. Castillo would cooperate with Mr. Schultz if Mr. Schultz had

abused him the previous day.

To the contrary, the District Court found, and we agree, that the videotape

is consistent with the fact that Mr. Castillo was beaten the previous day and does

not cast sufficient doubt on the fact that Mr. Schultz participated in that abuse.

The Government presented evidence at trial that on April 5 Mr. Castillo was

beaten in the kidney area. The video shows Mr. Castillo’s abdomen wrapped in

bandages consistent with the area of beating. Further, the video shows Mr.

Castillo moving somewhat gingerly, which is also consistent with testimony that

he was abused the previous day. That the video shows Mr. Schultz and Mr.

Castillo interacting without incident does not undermine our confidence in the

outcome of the trial. As the District Court noted, “[i]t is a fact of life that in a

prison setting, prisoners are forced to interact on a daily basis with the

correctional officers, even those officers that may have mistreated or abused the

prisoners.” The tape merely shows Mr. Castillo cooperating with the officers the

-49-
day after the assault and as such, it has little bearing on what occurred the

previous day. Cf. Engberg v. Wyoming, 265 F.3d 1109, 1118 (10th Cir. 2001)

(evidence that creates a mere “possibility” of a different result does not meet the

standard for “reasonable probability”). We therefore hold that the evidence was

not material and, as such, Mr. Schultz’s due process rights were not violated.

Mr. Schultz also argues that the Government’s destruction of the April 5,

1996 videotape violated his due process rights and warrants a new trial under

California v. Trombetta, 467 U.S. 479 (1984). Mr. Schultz did not raise this issue

to the District Court. Accordingly, we review the District Court’s failure sua

sponte to realize that the destruction warranted a new trial only for plain error.

Fed. R. Crim. P. 52(b); United States v. McDonald, 933 F.2d 1519, 1524 (10th

Cir. 1991).

For the government’s destruction of evidence “to rise to the level of

affecting a defendant’s due process rights under California v. Trombetta, the

evidence ‘must both possess an exculpatory value that was apparent before the

evidence was destroyed, and be of a nature that the defendant would be unable to

obtain it by other reasonably available means.’” United States v. Pearl, 324 F.3d

1210, 1215 (10th Cir. 2003) (quoting Trombetta, 467 U.S. at 489)). In addition,

the defendant must show that the government acted in bad faith. Id. (citing

Arizona v. Youngblood, 488 U.S. 51, 58 (1988)).

Even if Mr. Schultz could show that the exculpatory value of the video was

-50-
apparent before the video was destroyed, he fails to show that the tape was

destroyed in bad faith. He argues that the failure of the Government to preserve

the tape undermines the only reason the tape was created in the first place and it

was therefore done in bad faith. To the contrary, there is unrebutted testimony

that these tapes, used to ensure that the correctional officers used the proper

procedures during forced-cell moves, were routinely destroyed in the ordinary

course of business approximately two years after their creation. Mr. Schultz

notes that the Government first became aware that Mr. Castillo was beaten when

it spoke with Ms. Gutierrez in February 2000, nearly four years after the incident.

When the defendants made their first request for the video in 2001, it had already

been destroyed. Therefore, Mr. Schultz has failed to establish the District Court

plainly erred in not granting a new trial on its own initiative due to the

Government’s bad-faith destruction of exculpatory evidence.

2. Newly discovered evidence

During the investigation that led to Mr. Schultz’s indictment, FBI

investigators questioned Mr. Castillo. Mr. Castillo told the investigators that he

was beaten by several correctional officers around the first of April 1996.

Though he could not recall all of the officers’ names who participated in the

abuse, he did state that all the officers who took part in the forced-cell move

committed the abuse. He did not identify Mr. Schultz by name. Since Mr.

Schultz was on duty that night, however, the Government began investigating

-51-
him. Several of Mr. Schultz’s coconspirators identified him as a participant. In

February 2001, the Government filed a superceding indictment against Mr.

Schultz for the abuse of Mr. Castillo. He was tried and convicted over two years

later in June 2003.

Mr. Castillo was incarcerated until May 2002. During this time, Mr.

Schultz never attempted to interview Mr. Castillo about his allegations of abuse.

Nor did Mr. Schultz attempt to locate Mr. Castillo after his release but prior to

trial. Mr. Castillo was not a witness at trial. After Mr. Schultz was sentenced to

41 months’ imprisonment in November 2003, however, he employed a private

investigator to locate Mr. Castillo; the investigator found Mr. Castillo within six

weeks. After finding him, the investigator showed Mr. Castillo a photo of Mr.

Schultz and asked whether Mr. Schultz ever beat him. Mr. Castillo responded

that Mr. Schultz had not done so and that, in fact, Mr. Schultz had treated him

with dignity and respect. 20 Mr. Schultz filed a motion for a new trial, which the

District Court denied.

20
We note, however, that Mr. Castillo’s testimony is hardly conclusive of
the issue. Mr. Castillo provided several inconsistent statements regarding Mr.
Schultz’s participation in the abuse. For example, he stated he believed Mr.
Schultz did not participate in the beating because Mr. Castillo “was sure [Mr.
Schultz] had not been on duty or present” that night. After being presented with
information that Mr. Schultz admitted not only to being present, but also to
participating in the forced-cell move, Mr. Castillo acknowledged that his memory
of the events seven years earlier was vague and that he could not positively state
whether Mr. Schultz took part in the abuse.

-52-
 Federal Rule of Criminal Procedure 33 authorizes a district court to grant a

new trial if the interests of justice require one. United States v. Quintanilla, 193

F.3d 1139, 1146 (10th Cir. 1999). We review rulings on a motion under Rule 33

for an abuse of discretion. Id. We apply a five-part test to determine whether

newly discovered evidence warrants a new trial. Id. at 1147. The defendant must

show:

(1) the evidence was discovered after trial, (2) the failure to learn of
the evidence was not caused by [his] own lack of diligence, (3) the
new evidence is not merely impeaching, (4) the new evidence is
material to the principal issues involved, and (5) the new evidence is
of such a nature that in a new trial it would probably produce an
acquittal.

Id.

The District Court denied Mr. Schultz’s motion for several reasons. First,

the court found that Mr. Schultz did not use due diligence in attempting to locate

Mr. Castillo before trial. Second, the court determined that Mr. Castillo’s

statements constituted only impeachment evidence because previous statements he

had made to the FBI were inconsistent with his current statements. Last, the

District Court concluded that there was not a reasonable probability that the

evidence would result in an acquittal if Mr. Schultz was to be given a new trial.

Because we agree that Mr. Schultz failed to exercise due diligence in discovering

the evidence before trial, we need not address whether Mr. Castillo’s testimony is

merely impeaching or whether there is a reasonable probability that it would

-53-
result in an acquittal.

Due diligence does not require that a defendant exercise the highest degree

of diligence possible to locate evidence prior to trial; only “reasonable diligence”

is required. United States v. Allen, 554 F.2d 398, 403 (10th Cir. 1977). This

requirement prevents defendants from keeping “an evidentiary trump card in the

event of a conviction.” Quintanilla, 193 F.3d at 1147. Mr. Schultz does not

dispute that he made no attempt to interview Mr. Castillo before trial. Nor can he

argue that he was unable to interview Mr. Castillo before trial, as Mr. Castillo

was incarcerated for a full fifteen months after the Government filed the

superceding indictment against Mr. Schultz. Rather, he contends that the standard

for diligence should be lowered because the Government produced misleading

reports that indicated Mr. Castillo had identified him as one of the abusers. As

support for this proposition he cites our decision in United States v. Sinclair, 109

F.3d 1527, 1532 (10th Cir. 1997) in which we refused to apply the Seventh

Circuit’s lower standard for evaluating the fifth prong of the test—that is, when

newly discovered evidence would likely produce an acquittal after a subsequent

trial. We stated:

[W]e are unwilling to apply the Larrison possibility standard when,
as here, the allegedly false testimony is merely impeaching. We
recognize that the possibility standard applied in Larrison and
subsequent cases might be appropriate when the government has
knowingly, recklessly, or negligently offered false testimony.
However, Mr. Sinclair has not alleged, nor does the record show, that
the government knowingly, recklessly, or negligently used Dallas

-54-
 Woods’s testimony about his school attendance. We therefore
conclude that the Larrison possibility standard should not be applied
under the circumstances in this case.

Id. at 1532 (citing Larrison v. United States, 24 F.2d 82 (7th Cir.1928)).

Mr. Schultz argues that the Government knowingly, recklessly, or

negligently offered misleading documents and that such conduct should lessen his

due diligence requirement. We decline to adopt such an approach. The

requirement of “reasonable diligence” adequately accounts for any misconduct by

the Government. Moreover, the reports from the interviews of Mr. Castillo do not

falsely claim that Mr. Castillo identified Mr. Schultz personally. They merely

state that Mr. Castillo alleged that he was beaten by all the officers who

participated in the forced-cell move—and Mr. Schultz admits that he participated

in that process. We therefore find no abuse of discretion on the part of the

District Court in denying Mr. Schultz’s motion for a new trial.

3. Prosecutorial Misconduct

Last, Mr. Schultz argues that the prosecution, knowing that the April 5,

1996 videotape of Mr. Castillo’s forced-cell move was destroyed in the ordinary

course of business, misrepresented to the jury that the defendants destroyed the

tape as part of their conspiracy to deprive Mr. Castillo of his constitutional

rights. 21

21
We note that Mr. Schultz’s argument on this basis cuts against his
(continued...)

-55-
 It does appear that part of the Government’s pre-trial theory of the case was

that the conspirators destroyed the tape to cover up any evidence of abuse. At

trial, however, the only statement that Mr. Schultz complains of with respect to

the defendants’ alleged destruction of the tape came in closing argument when

Mr. Blumberg said that “the removal of the video camera was a fake.” (emphasis

added). This statement in no way indicates that Mr. Schultz destroyed the tape

inside the camera. Rather, it references Mr. Schultz’s role in the conspiracy—his

job was to knock over the video camera so that it would not record the ensuing

abuse. Because Mr. Blumberg did not argue before the jury that the defendants

destroyed this evidence to cover up their crime, Mr. Schultz’s argument is simply

without merit.

VI. SENTENCING

We now turn to issues concerning the Appellants’ sentences. Mr.

Verbickas was found guilty of a single count of deprivation of civil rights in

violation of 18 U.S.C. § 242. The base offense level for a conviction under § 242

is governed by U.S.S.G. § 2H1.1, “Offenses Involving Individual Rights,” which

directs the court to apply the greatest offense level of:

(1) the offense level from the offense guidelines applicable to any
underlying offense;

(...continued)
21

argument that the Government destroyed the tape in bad faith in violation of his
due process rights under Trombetta.

-56-
 (2) 12, if the offense involved two or more participants;
(3) 10, if the offense involved
(A) the use of threat of force against a person or
(B) damages or the threat of property damages; or
(4) 6, otherwise.

U.S.S.G. § 2H1.1(a). The District Court calculated Mr. Verbickas’s base offense

level at 12 because it concluded that the offense involved two or more

participants. See U.S.S.G. § 2H1.1(a)(2). It then imposed a six-level

enhancement because the offense was committed under color of law, see U.S.S.G.

§ 2H1.1(b)(1); a two-level enhancement because Mr. Lane was a vulnerable

victim, see U.S.S.G. § 3A1.1(b)(1); and a two-level enhancement because Mr.

Lane was restrained during the assault, see U.S.S.G. § 3A1.3. The resulting base

offense level was 22. The District Court then departed downward two levels

because it determined that Mr. Verbickas was especially susceptible to abuse in

prison. See U.S.S.G. § 5K2.0 (permitting downward departures for circumstances

not adequately taken into consideration by the Guidelines). The court further

departed another two levels because it found both that the assault was aberrant

behavior, see U.S.S.G. § 5K2.20, and that Mr. Lane’s misconduct substantially

contributed to provoking the assault, see U.S.S.G. § 5K2.10. The resulting

offense level was 18, and Mr. Verbickas had a criminal history score of I, which

subjected him to a sentence of 27–33 months’ imprisonment. The District Court

sentenced him to 30 months. Mr. Verbickas challenges each of the sentencing

enhancements except for the under color of law enhancement under United States

-57-
v. Booker, arguing that his offense level before the court’s downward departure

should only have been 16, see U.S.S.G. §§ 2H1.1(a)(3) and (b)(1), with a

resulting sentencing range of only 21–27 months.

Messrs. LaVallee and Schultz were found guilty both of conspiracy under

18 U.S.C. § 241 as well as a substantive offense under 18 U.S.C. § 242 for the

assault of Mr. Castillo. Because both offenses were committed by two or more

people, the District Court determined the base level for both men to be 12. See

U.S.S.G. § 2H1.1(a)(2). As it had with Mr. Verbickas, the District Court applied

a six-level enhancement for acting under color of law, see U.S.S.G.

§ 2H1.1(b)(1); a two-level enhancement for a vulnerable victim, see U.S.S.G.

§ 3A1.(b)(1); and a two-level enhancement for committing the offense while the

victim was restrained, see U.S.S.G. § 3A1.3. Because the Guidelines prohibit the

grouping of conspiracy and substantive offenses when the conspiracy has another

object besides the substantive offense, see U.S.S.G. § 3D1.2 cmt. 4, the District

Court added another two levels under U.S.S.G. § 3D1.4(a) (requiring the addition

of two levels for offenses constituting two equally serious groups). The court

then granted a two-level departure for susceptibility to abuse in prison. See

U.S.S.G § 5K2.0. With a resulting offense level of 22 and a criminal history

score of I, the applicable Guidelines range was 41–51 months’ incarceration.

Messrs. LaVallee and Schultz were both sentenced to 41 months. Both contend

that the District Court committed error under Booker which resulted in the

-58-
imposition of a higher sentence than that warranted by facts found by the jury.

A. Booker Error

In Booker, the Supreme Court held that the Sixth Amendment requires that

“[a]ny fact (other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established by a plea of

guilty or a jury verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt.” Booker, 125 S. Ct. at 756. As a remedy, the Court

severed the statutory section requiring district courts to sentence within the

Guidelines range. Id. at 756–57. We recognize two types of Booker errors:

constitutional and non-constitutional. United States v. Gonzalez-Huerta, 403 F.3d

727, 731 (10th Cir. 2005). A constitutional Booker error occurs when a court

“[relies] upon judge-found facts, other than those of prior convictions, to enhance

a defendant’s sentence mandatorily.” Id. A non-constitutional error arises when

a sentencing court “appl[ies] the Guidelines in a mandatory fashion, as opposed to

a discretionary fashion, even though the resulting sentence was calculated solely

upon facts that were admitted by the defendant, found by the jury, or based upon

the fact of a prior conviction.” Id. at 731–32. These appeals allege constitutional

Booker error.

Because all three Appellants challenge such error for the first time on

appeal, we review for plain error. Fed. R. Crim. P. 52(b); Gonzalez-Huerta, 403

F.3d at 732. To establish plain error, the Appellants “must demonstrate that (1)

-59-
the District Court committed error, (2) that the error was plain, and (3) that the

plain error affected [their] substantial rights. United States v. Dazey, 403 F.3d

1147, 1174 (10th Cir. 2005). If each condition is met, “a court reviewing the

error may exercise discretion to correct it if the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. When

reviewing a potential constitutional error, we conduct this analysis less rigidly.

Id. “By now, it is axiomatic under plain error review that a court commits error

that is plain when it enhances a defendant’s sentence based on judicially-found

facts.” United States v. Taylor, 413 F.3d 1146, 1155 (10th Cir. 2005). We will

therefore limit our review to the third and fourth prongs of the plain error test.

To satisfy their burden on the third prong of plain error, the Appellants

must establish that their substantial rights were affected—that is, they must show

to a “reasonable probability” that the error in sentencing affected the outcome of

the proceedings. Dazey, 403 F.3d at 1175. We have identified at least two ways

a defendant can make this showing in the case of constitutional Booker error:

First, if the defendant shows a reasonable probability that a jury
applying a reasonable doubt standard would not have found the same
material facts that a judge found by a preponderance of the evidence,
then the defendant successfully demonstrates that the error below
affected his substantial rights. . . . Second, a defendant may show
that the district court’s error affected his substantial rights by
demonstrating a reasonable probability that, under the specific facts
of his case as analyzed under the sentencing factors of 18 U.S.C. §
3553(a) the district court judge would reasonably impose a sentence
outside the Guidelines range.

-60-
Id. (footnote omitted).

If the Appellants satisfy the first three prongs of plain error review, they

must then persuade this Court that the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. We have stated that a

defendant can meet this burden by presenting evidence that:

(a) a sentence increased substantially based on a Booker error; (b) a
showing that the district court would likely impose a significantly
lighter sentence on remand; (c) a substantial lack of evidence to
support the entire sentence the Guidelines required the district court
to impose; (d) a showing that objective consideration of the §
3553(a) factors warrants a departure from the sentence suggested by
the Guidelines; or (e) other evidence peculiar to the defendant that
demonstrates a complete breakdown in the sentencing process.

United States v. Serrata, 425 F.3d 886, 919 (10th Cir. 2005).

1. Mr. Verbickas’s Sentence

Mr. Verbickas has failed to satisfy the third prong of establishing plain

error. First, he has failed to show that a jury applying a reasonable doubt

standard would not have found the same material facts. Indeed, Mr. Verbickas

did not challenge the factual basis of any of the enhancements at the District

Court (and does not do so here). Rather, with respect to the enhancements based

on the condition of the victim (restrained and vulnerable), Mr. Verbickas’s

contentions were legal claims. 22 Cf. United States v. Riccardi, 405 F.3d 852, 876

22
For example, Mr. Verbickas argued that if the District Court imposed one
of the enhancements, it should not impose the other because it would constitute
(continued...)

-61-
(10th Cir. 2005) (in harmless error analysis, stating that defendant’s decision not

to contest the facts supporting an enhancement indicates that constitutional

Booker error did not affect substantial rights). Moreover, the record is replete

with testimony that Mr. Lane was in fact restrained and that he was in fact

“vulnerable” within the meaning of the Guideline provision. See U.S.S.G.

§ 3A1.1; United States v. Lambright, 320 F.3d 517, 518 (5th Cir. 2003) (inmate

who was completely dependent on correctional officers for care, was locked in

cell, and was unable to protect himself from assault was vulnerable victim);

United States v. Hershkowitz, 968 F.2d 1503, 1504–06 (2d Cir. 1992) (inmate

beaten while surrounded by correctional officers was vulnerable victim). With

respect to the enhancement based on the offense involving two or more

participants, the record shows that Ms. Gutierrez pleaded guilty to abusing Mr.

Lane. Finally, it is clear from the jury’s verdict that it found Mr. Verbickas was

acting under color of law. Indeed, a finding that the defendant acted under color

of law in depriving an inmate of a constitutional right was explicitly listed as an

element of § 242 in the jury instructions. Accordingly, Mr. Verbickas has in no

way demonstrated that a jury applying a reasonable doubt standard would not

have found the same facts as the District Court which gave rise to the

enhancements.

(...continued)
22

impermissible “double counting,” which he does not raise here.

-62-
 Second, Mr. Verbickas has failed to show that the District Court, applying

the sentencing factors in § 3553(a), might have imposed a sentence outside the

Guidelines range. The judge did not express any dissatisfaction with the length of

the sentence or indicate that he felt that it was inappropriate in light of all the

circumstances. See Dazey, 403 F.3d at 1175. Further, the District Court imposed

a sentence in the middle of the applicable Guidelines range, even though it was

within the court’s power to impose a shorter sentence under the pre-Booker

scheme. That it was not inclined to do so suggests that the judge would not

exercise “his now greater [post-Booker] discretion to reduce the sentence.”

United States v. Riccardi, 405 F.3d 852, 876 (10th Cir. 2005).

We are aware that this Court recently found that constitutional Booker error

affected a defendant’s substantial rights even though the district court had granted

a five-level downward departure that took into consideration several of the

sentencing factors recommended by § 3553(a)(1). See Serrata, 425 F.3d at 918.

Though the District Court in this case took several of the § 3553(a)(1) sentencing

factors into account in granting Mr. Verbickas a two-level downward departure,

we think that Serrata is distinguishable for several reasons. First, in Serrata we

found that “the most telling evidence” that the defendant’s substantial rights were

violated was that the district court “repeatedly expressed its dissatisfaction with

the guidelines” and stated that it would sentence each defendant to probation if

the Guidelines so permitted. Id. at 919. Second, the district court sentenced each

-63-
defendant to the lowest possible sentence in the applicable Guidelines range. Id.

Third, this Court found that the district court abused its discretion in departing

downward—we acknowledged that although departure was not warranted under

the Guidelines, post-Booker, the same factors may warrant departure pursuant to

§ 3553(a)(1). 23 Id.; cf. United States v. Ollson, 413 F.3d 1119, 1121 (10th Cir.

2005) (finding that defendant’s substantial rights not violated when district court

properly exercised discretion to depart downward and could have departed further

if it determined further departure was warranted). None of these circumstances

are present in this case. We therefore conclude that Mr. Verbickas has failed to

establish that but for the improper judicial fact-finding, the result of his

proceeding would have been different.

2. Mr. LaVallee’s and Mr. Schultz’s Sentences

As noted above, the enhancement for acting under color of law, see

U.S.S.G. § 2H1.1(b)(1), is fully reflected in the jury’s verdict. The same can be

said of the enhancement under U.S.S.G. § 2H1.1(a)(2) (offense committed by two

or more people) because both Mr. LaVallee and Mr. Schultz were convicted of

conspiracy under 18 U.S.C. § 241, which requires “two or more persons” as an

23
We also note that because the court in Serrata held that the district court
abused its discretion in imposing a five-level downward departure thus requiring
remand, the court’s discussion of Booker error is dicta. See United States v. Sims,
428 F.3d 945, 966 (10th Cir. 2005) (declining to address Booker issues when
district court abused its discretion in departing downward).

-64-
element of the offense. Accordingly, these enhancements do not constitute

constitutional Booker error.

In addition, the facts giving rise to the two-level enhancement under

U.S.S.G. § 3D1.4(a), which is predicated on a finding that the substantive offense

was not “the sole object of the conspiracy,” see U.S.S.G. § 3D1.2 cmt. 4, are also

implicit in the jury’s verdict. The jury instructions provided that the jury must

find beyond a reasonable doubt that the Government proved “that the single

overall conspiracy alleged in Count I of the superceding indictment existed.” The

superceding indictment alleged that the defendants engaged in a conspiracy to (1)

unjustifiably strike, kick, assault, injure, and physically punish inmates; (2)

falsely justify uses of force against inmates by falsifying records and fabricating

injuries; (3) threaten officers to secure their silence; and (4) perpetuate an

environment within the prison allowing unlawful beatings and assaults against

inmates to continue indefinitely and with impunity. Clearly, then, the jury’s

guilty verdict against Mr. LaVallee and Mr. Schultz on the conspiracy charge

reflects the fact that the Government proved beyond a reasonable doubt that the

beating of Mr. Castillo was not the sole object of the conspiracy. Therefore, this

enhancement is also not constitutional Booker error.

Accordingly, only the other two enhancements—one two-level

enhancement for a vulnerable victim and another two-level enhancement for a

restrained victim—potentially violate Booker. Without these enhancements, the

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sentencing range supported by the jury’s findings was 33–41 months’

imprisonment, based on an offense level of 20 rather than 24. The District Court

exercised its discretion to depart downward two levels from 24 to 22, however,

and thus calculated the applicable sentencing range to be 41–51 months; the court

ultimately sentenced both Mr. LaVallee and Mr. Schultz to 41 months. We stated

in United States v. Yazzie that:

Booker made clear that it is the actual sentence, not the sentencing
range, that must not be increased based upon judge-found facts in
order to violate the Sixth Amendment: “Accordingly, we reaffirm our
holding in Apprendi: Any fact (other than a prior conviction) which
is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury beyond
a reasonable doubt.”

407 F.3d 1139, 1144 (10th Cir. 2005) (quoting Booker, 125 S. Ct. at 756).

Because the District Court’s judicial fact-finding did not increase the sentence

beyond that authorized by the jury’s verdict, there was no constitutional error.

Id.; see also United States v. Small, 423 F.3d 1164, 1188 (10th Cir. 2005).

Nevertheless, it is clear on appeal that the District Court’s mandatory

application of the Guidelines still constitutes non-constitutional Booker error that

is plain. We need not decide whether Messrs. LaVallee’s and Schultz’s

substantial rights were affected, however, because they have failed to satisfy their

burden on the fourth prong of plain error analysis. See Yazzie, 407 F.3d at 1146

(declining to conduct a substantial-rights analysis because defendant could not

-66-
satisfy the fourth prong of plain-error review). We will not notice non-

constitutional error “unless it is both particularly egregious and our failure to

notice the error would result in a miscarriage of justice.” Id. The Appellants

have made no such showing here.

B. Cross-Appeal

It its cross-appeal, the Government raises three arguments. First, it argues

that the District Court erred in failing to impose an enhancement to each

Appellant’s sentence for obstruction of justice. Second, it argues that the District

Court erred in granting the Appellants a two-level downward departure due to

their susceptibility to abuse in prison. Third, it argues that the District Court

erred in granting Mr. Verbickas an additional two-level downward departure due

to the inmate’s provocation of the offense behavior and Mr. Verbickas’s aberrant

behavior.

Post-Booker, district courts, though not bound by the Guidelines, must

consult the Guidelines and consider them in sentencing. See Booker, 125 S. Ct.

738, 767 (2005). This consultation requirement normally obliges the district

court to calculate correctly the sentencing range prescribed by the Guidelines.

See United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.2005); United

States v. Sierra-Castillo, 405 F.3d 932, 936 n.2 (10th Cir. 2005). In considering

the district court’s application of the Guidelines, we review its factual findings

for clear error, and its legal determinations de novo. Serrata, 425 F.3d at 906.

-67-
“We give due deference to the district court’s application of the guidelines to the

facts.” Id. (quotation omitted).

The Government first argues that the District Court erred in failing to apply

an obstruction of justice enhancement to each of their sentences pursuant to

U.S.S.G. § 3C1.1. As an initial matter, we recognize that if the District Court had

applied the obstruction of justice enhancement to increase the Appellants’

sentences mandatorily, it would have committed constitutional Booker error. See

United States v. Corchado, 427 F.3d 815, 821 (10th Cir. 2005). Booker made its

remedial interpretation of the Guidelines applicable to all cases on direct review,

however, and we therefore must still consider the merits of the Government’s

cross-appeal. See Booker, 125 S. Ct. at 769; United States v. Lynch, 397 F.3d

1270, 1272 (10th Cir. 2005).

With respect to this claimed error, the Government suffers the same fate as

the Appellants in their claim of error related to the discovery of alleged promises

made to Ms. Gutierrez in exchange for her testimony. The District Court’s ruling

on this issue is conspicuously missing from the transcript and the Government has

otherwise failed to point to the place in the record where this discussion is found.

Because we must be informed by the District Court’s findings of fact and its

application of the Guidelines to the facts, the Government’s failure to ensure that

the record has been supplemented with the relevant transcripts is fatal to its claim.

See 10th Cir. R. 28.2(C)(2), (3); United States v. LaHue, 261 F.3d 993,

-68-
1014–1015 (10th Cir. 2001).

Next, the Government argues that the District Court erred in granting each

Appellant a two-level downward departure based on their susceptibility to abuse

in prison under U.S.S.G. § 5K2.0. We review downward departures under a

unitary abuse of discretion “which includes review to determine that the

discretion of the district court was not guided by erroneous legal conclusions.”

United States v. Collins, 122 F.3d 1297, 1302 (10th Cir. 1997) (quotation and

alteration omitted). In determining whether the district court abused its discretion

this Court must evaluate: (1) whether the factual circumstances supporting a

departure are permissible departure factors; (2) whether the departure factors

relied upon by the district court remove the defendant from the applicable

Guideline heartland thus warranting a departure, (3) whether the record

sufficiently supports the factual basis underlying the departure, and (4) whether

the degree of departure is reasonable. Id. Here, the Government claims only that

the District Court erred in finding that the Appellants’ susceptibility to abuse in

prison removed them from the heartland of cases thus warranting departure.

The fact that police officers are susceptible to abuse in prison does not,

alone, warrant a downward departure. See Koon v. United States, 518 U.S. 81,

112 (1996). Indeed, in many instances, committing a crime while acting under

color of law will result in a higher sentence—as it did in this case—rather than a

lower sentence. See U.S.S.G. § 2H1.1(b)(1) (permitting enhancement when

-69-
offense is committed under color of law). However, when a district court

determines that the defendants’ susceptibility to abuse is compounded by

“widespread publicity and emotional outrage . . . [this] is just the sort of

determination that must be accorded deference by the appellate courts.” Koon,

518 U.S. at 112.

Relying on Koon, the District Court found that this case was outside the

heartland of the Guidelines because it was part of a vast investigation, spanning

several years, that involved not only the abuse of inmates by correctional officers,

but also the conspiracy to abuse inmates. In addition to evidence of the size and

scope of the investigation, the District Court was presented with other evidence

that this case was outside the heartland of cases. For example, there was evidence

that the investigation was reported on in a publication distributed among federal

inmates; that because of the Appellants’ notoriety they were on 23-hour

lockdown; and that other inmates threatened the Appellants’ lives and described

the types of sexual acts they would commit upon their bodies once they were

dead. Based on these circumstances, the District Court felt that a two-level

downward departure was warranted. We find no abuse of discretion in that

determination.

Finally, we address the Government’s argument that the District Court

abused its discretion in granting Mr. Verbickas a two-level downward departure

based on the combined reasons of Mr. Verbickas’s aberrant behavior, see

-70-
U.S.S.G. § 5K2.20, and the victim’s misconduct that substantially contributed to

provoking the offense behavior, see U.S.S.G. § 5K2.10.

Section 5K2.10 provides that:

If the victim’s wrongful conduct contributed significantly to provoking the
offense behavior, the court may reduce the sentence below the guideline
range to reflect the nature and circumstances of the offense.

U.S.S.G. § 5K2.10. We first note that victim provocation is an “encouraged

departure factor.” Koon, 518 U.S. at 94 (citing U.S.S.G. § 5K2.10). Further, the

provoking conduct need not immediately precede the offense behavior. Id. at

104; see also U.S.S.G. § 5K2.10(3) (instructing courts to consider the danger

perceived by the defendant and the victim’s reputation for violence). In this case,

there was testimony that Mr. Lane made sexually explicit remarks to a female

officer, threatened Mr. Verbickas immediately before the assault, and made an

aggressive move toward him. Indeed, the District Court noted Mr. Lane’s “surly”

behavior in granting the departure.

The aberrant behavior exception may apply in an exceptional case when

“the defendant committed a single criminal occurrence or single criminal

transaction that (1) was committed without significant planning; (2) was of

limited duration; and (3) represents a marked deviation by the defendant from an

otherwise law-abiding life.” U.S.S.G. § 5K2.20(a), (b). The conduct for which

Mr. Verbickas was convicted meets the three requirements of § 5K2.20(b), and

there is substantial evidence in the record that this was also an exceptional case,

-71-
thus warranting a departure. We therefore find no abuse of discretion in this case.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the Appellants’ convictions and

sentences.

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No. 03-1515, United States v. Verbickas

No. 03-1522, United States v. LaVallee

No. 03-1523, United States v. Schultz

No. 04-1000, United States v. Verbickas

No. 04-1540, United States v. Schultz

BRISCOE, Circuit Judge, concurring:

I concur in the judgment but write separately to address the issue of

Grundy’s disqualification, as it relates to LaVallee and Schultz, in greater detail.

I.

Grundy’s relationship with the defendants was first brought to the attention

of the district court in July 2001, when defendant Gall, who was later acquitted,

filed a motion to suppress statements he gave to FBI agents and prosecutors

during the pre-indictment investigation. 1 In support of his motion, Gall argued

that he was confused and/or misled by Grundy regarding his right to legal

representation at the time he gave the statements to the FBI agents and

prosecutors. The district court held an evidentiary hearing on Gall’s motion on

September 25, 2001. ROA, Vol. X. Upon being called by Gall’s defense counsel,

Grundy first testified generally about her duties at USP-Florence in 1999.

According to Grundy, in early 1999 she “was the supervisory attorney with

Defendant Pruyne filed a similar motion, but ultimately withdrew it.
1

ROA, Vol. X, at 142.
responsibilities for providing legal services to” employees “of the facilities at

Florence” “[i]n connection with their jobs . . . .” Id. at 93. With respect to

correctional officers who were sued by inmates alleging abuse, Grundy testified

that she would “assist the staff member, if they request[ed] representation by the

Department of Justice, in obtaining representation or making the request itself . . .

.” Id. In doing so, she would “ask them” for their version of “what happened.”

Id. Then, “[i]f representation [wa]s granted,” she would “assist the United States

attorney’s office . . . in providing the defense to the civil suit of that particular

employee.” Id. Grundy then testified about her dealings with defendant Gall. In

1997, Grundy was contacted by either the FBI or an attorney from the DOJ’s

Civil Rights Division staff and informed that they “would be looking to interview

certain correctional officer witnesses . . . .” Id. at 126. Grundy was further

informed that, other than being criminal in nature, she could not be told the nature

of the investigation being conducted. Id. at 128. In March 1999, and again in

July 1999, Grundy was asked by investigators to arrange interviews for them with

defendant Gall. Id. at 129. In arranging those interviews, Grundy informed Gall

that DOJ lawyers and FBI agents were interested in speaking with him, id., and

that he was free to speak or not speak with them. Id. at 130. Grundy further

informed Gall that she “could not help him with” the interviews and that she

“wasn’t going in there.” Id. at 131. According to Grundy, Gall did not ask her to

arrange legal or union representation for him. Id. at 131-32. The district court

-2-
ultimately denied Gall’s motion. Id. at 236.

Approximately nineteen months later, on April 21, 2003 (the tenth day of

trial), all of the defendants filed a joint motion to disqualify Grundy for violating

Colorado Rules of Professional Conduct 1.6(a), 1.9, and 1.11(b) and (e). ROA,

Vol. V, Doc. 1080. In their motion, defendants alleged that Grundy, who by that

time was working as an assistant general counsel for the BOP nationally, provided

prior representation to them in several respects. In particular, defendants alleged

that while they were employed as correctional officers at USP-Florence, various

civil actions were filed against them by inmates, and that Grundy acted as their

legal counsel in connection with these actions. Id. at 2-3. One such civil action

was filed by inmate William Turner and concerned the same alleged conduct that

was listed as one of the overt acts in Count I of the superseding indictment, and

that formed the basis for Count VIII of the superseding indictment (the jury

acquitted defendants LaVallee, Schultz, and Bond on this latter count). In turn,

defendants alleged that Grundy played two roles in the prosecution of the case

against them. First, defendants alleged that Grundy “provided ‘liaison’

coordination between the BOP and the United States Attorney’s Office

prosecuting this action until sometime prior to April 1, 2002 as a BOP employee.”

Id. Second, defendants alleged that “Grundy became a contract attorney for the

United States Attorney prosecuting th[e] matter before the commencement of

th[e] trial.” Id. “In that role,” defendants alleged, “Grundy participated in

-3-
witness interviews with the witnesses to be called by the prosecution . . . .” Id.

Based upon these allegations, defendants alleged that “a conflict of interest

exist[ed] and [that],” pursuant to the Colorado Rules of Professional Conduct

cited in their motion, “Grundy’s representation of the United States in this matter

require[d] her disqualification.” Id.

Upon receiving the motion, the district court asked the lead prosecutor to

explain Grundy’s “role in th[e] case.” ROA, Vol. LVI, at 2195. The lead

prosecutor explained that Grundy

ha[d] been assigned by the [BOP] to assist and manage witnesses and
just general management of the trial and act as liaison to the
prosecution team in order to make sure we get people in and out at
the right times and assist with travel and documents and basically
logistics for the most part. She is not hired by the U.S. Attorney’s
office. She is not a special assistant U.S. attorney.

Id. at 2195-96. In addition, the lead prosecutor stated that Grundy “was a general

counsel or assistant general counsel for the [BOP]” and “d[id]n’t represent the

defendants.” Id. at 2196. The district court stated it was “tempted to summarily

deny th[e motion] as late,” but would instead first give the government a chance

to respond in writing. Id.

On April 28, 2003, the government filed its written response to defendants’

motion to disqualify Grundy. Id., Vol. V, Doc. 1120. Therein, the government

asserted that Grundy “[wa]s not a contract attorney for the United States Attorney

prosecuting the case at bar,” but rather was “Counsel for the [BOP] and ha[d]

-4-
been facilitating the appearance of [BOP] staff at th[e] trial.” Id. at 1. “As such,”

the government argued, Grundy’s “presence in the court c[ould not] be equated

with the representation of the United States in the prosecution of th[e] case.” Id.

Further, the government argued that “[i]n her role as Counsel for the [BOP],”

Grundy “represented the [BOP] and not the employees of her agency.” Id. at 2.

Although the government acknowledged that Grundy acted as “a conduit through

which [prison] employees obtained representation from the U.S. Department of

Justice and United States Attorney’s Office for civil suits filed against them in

their official capacities,” it asserted that such actions were “insufficient to create

an attorney-client relationship” with the individual prison employees she assisted.

Id. Relatedly, the government asserted that defense counsel were “already aware

that civil attorneys from the U.S. Department of Justice and/or the United States

Attorney’s Office represented their clients in the various suits filed against them

by inmates as they ha[d] already moved for notes and statements provided to

these attorneys by their clients.” Id. at 3. Lastly, the government asserted that

“Grundy [wa]s not going to be called as a witness for the government” at trial.

Id.

On April 28, 2003 (the same day the government filed its written response),

the district court orally denied defendants’ motion to disqualify Ms. Grundy.

ROA, Vol. LX, at 3212. In doing so, the district court simply stated: “I find it to

-5-
be utterly without merit.” 2 Id.

II.

In their opening appellate briefs, LaVallee and Schultz contend that the

inclusion of Jenifer Grundy on the prosecution team was a clear conflict of

interest. (LaVallee’s Br. at 2, issue 3; and Schultz’s Br. at 42, issue 5.) Both

LaVallee and Schultz have incorporated by reference the discussion of the Grundy

issue contained in Verbickas’ opening appellate brief. Verbickas’ brief, in turn,

repeatedly emphasizes that each of the defendants, including LaVallee and

Schultz, had an attorney-client relationship with Grundy. In particular,

Verbickas’ brief states:

• “The [district] court was made aware of the conflict presented by
Grundy’s representation of Pruyne, LaVallee, Schultz and Bond at
the hearing held on July 11, 2001.” Verbickas’ Br. at 28 (emphasis
added).

• “Grundy had an attorney-client relationship with the Defendants
because of her position as legal counsel to the USP Florence
employees. During the investigation of this case, all Defendants
worked as correctional officers at USP Florence. As a result of their
employment, numerous civil actions were filed by inmates alleging
some of the Defendants violated their civil rights, including: Turner
v. Schultz, et al., 99-WM-2232 . . . . These civil actions alleged so-
called ‘Bivens’ violations against the Defendants and other
correctional officers. LaVallee, Schultz and Bond, three co-
defendants in this trial, were named as Defendants in Turner." Id. at
31 (emphasis added).

• “Grundy represented Pruyne and these Defendants regarding their

2
The government, in its appellate brief, asserts the district court denied the
motion as untimely. That assertion, however, is not supported by the record.

-6-
 requests for DOJ representation. She entered into an attorney-client
relationship with Defendants and gathered relevant information
regarding their requests to be afforded DOJ legal representation in
these civil actions.” Id. at 32 (emphasis added).

• “Grundy’s relationship with the Defendants proved there were
attorney-client relationships that subjected her to the ethical
obligation of preserving confidential communications.” Id. at 38
(emphasis added).

• “The Defendants looked to Grundy as their lawyer.” Id. at 38
(emphasis added).

• “Grundy advised Defendants.” Id. at 39 (emphasis added).

• “Grundy’s prior relationship with the Defendants constitutes actual
impropriety under Colorado law.” Id. at 42.

In sum, the allegations in Verbickas’ brief are sufficiently detailed to suggest the

district court erred in denying LaVallee’s and Schultz’s motion to disqualify

Grundy.

II.

We “review a district court’s decision on a motion to disqualify counsel for

abuse of discretion.” Chavez v. New Mexico, 397 F.3d 826, 839 (10th Cir. 2005);

see United States v. Bolton, 905 F.2d 319, 321 (10th Cir. 1990) (same). “The

merits of [a] disqualification motion depend on whether a substantial relationship

exists between the pending suit and the matter in which the challenged attorney

previously represented the client.” Bolton, 905 F.2d at 321 (internal quotation

marks omitted).

In reviewing the district court’s ruling, the threshold question is whether an

-7-
attorney-client relationship existed between Grundy and either LaVallee or

Schultz. According to defendants’ motion, a USP-Florence inmate named

William Turner filed a federal civil action against LaVallee and Schultz (as well

as defendant Bond) asserting they violated his constitutional rights by physically

abusing him. Although it is not entirely clear from the record, it appears that

LaVallee and Schultz sought and received representation from the Department of

Justice with respect to this civil action and, in doing so, worked at least initially

with Grundy. Based upon the testimony Grundy gave during the evidentiary

hearing on defendant Gall’s motion, it appears that she would have interviewed

LaVallee and Schultz in order to obtain their version of events and, in turn, would

have assisted them in obtaining representation from other DOJ attorneys. As the

supervisory attorney at USP-Florence, Grundy followed this general procedure

when a USP-Florence employee sought DOJ representation after being sued by an

inmate. Assuming these facts are true (the government has never seriously

disputed these facts), it appears that an attorney-client relationship did, in fact,

exist between Grundy and these two defendants. According to 28 C.F.R. §

50.15(a)(3), “[a]ttorneys employed by any component of the Department of

Justice who participate in any process utilized for the purpose of determining

whether the [DOJ] should provide representation to a federal employee,

undertake a full and traditional attorney-client relationship with the employee

with respect to application of the attorney-client privilege.” This provision would

-8-
clearly encompass Grundy, since she allegedly “participate[d] in [the] process

utilized” by the DOJ for determining whether it would provide representation to

USP-Florence employees.

Assuming, then, that Grundy had an attorney-client relationship with

LaVallee and Schultz regarding the William Turner lawsuit, the question then

becomes whether, pursuant to the Colorado Rules of Professional Conduct cited

by defendants in their original motion, that relationship barred Grundy from

acting as a “liaison” to the DOJ attorneys prosecuting the defendants.

Defendants first cited to Rule 1.6(a), entitled Confidentiality of

Information, which states:

A lawyer shall not reveal information relating to representation of a
client unless the client consents after consultation, except for
disclosures that are impliedly authorized in order to carry out the
representation, and except as stated in paragraphs (b) and (c).

Applying that rule to the circumstances here, there is no evidence, and no express

assertion by defendants, that Grundy revealed to the prosecution team any

information that was provided to her by LaVallee or Schultz in connection with

the civil suit filed against them by inmate Turner. Nor does it appear to be a

reasonable assumption that, by simply coordinating BOP witnesses for the

prosecution team, Grundy necessarily would have disclosed any such information.

Thus, there is no basis for concluding that Grundy’s role as “liaison” to the

prosecution team resulted in a violation of Rule 1.6(a).

-9-
 The second rule cited by defendants was Rule 1.9(a), entitled Conflict of

Interest: Former Client, which states:

A lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially
related matter in which that person’s interests are materially adverse
to the interests of the former client unless the former client consents
after consultation.

Applying that rule to the circumstances present here, it appears, for the reasons

already discussed, that Grundy likely had an attorney-client relationship with

LaVallee and Schultz in connection with the civil lawsuit filed by inmate Turner.

Further, as noted, that civil lawsuit was apparently based upon some of the same

allegations of abuse as set forth in the superseding indictment. Thus, Rule 1.9(a)

would have prohibited Grundy from representing any interests that were adverse

to defendants LaVallee and Schultz. Based upon the information contained in the

government’s response to defendants’ motion to disqualify Grundy, however,

there is no indication that she ever acted as government counsel in these criminal

proceedings. In other words, although defendants have characterized Grundy as a

“member of the prosecution team,” it appears that she, in fact, simply helped to

coordinate BOP witnesses for the DOJ attorneys who represented the government

in this case, and otherwise played no role in the investigation or prosecution of

the charges against defendants. Thus, Rule 1.9(a) was not violated. 3

3
Even assuming, for purposes of argument, that Grundy could have been
considered a member of the prosecution team, any resulting violation of Rule
(continued...)

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 Finally, defendants cited Rule 1.11, entitled Successive Government and

Private Employment, which states, in pertinent part:

(b) Except as law may otherwise expressly permit, a lawyer having
information that the lawyer knows is confidential government
information about a person acquired when the lawyer was a public
officer or employee, may not represent a private client whose
interests are adverse to that person in a matter in which the
information could be used to the material disadvantage of that
person. A firm with which that lawyer is associated may undertake
or continue representation in the matter only if the disqualified
lawyer is screened from any participation in the matter and is
apportioned no part of the fee therefrom.

***

(e) As used in this Rule, the term “confidential government
information” means information which has been obtained under
governmental authority and which, at the time this rule is applied, the
government is prohibited from disclosing to the public or has a legal
privilege not to disclose, and which is not otherwise available to the
public.

Clearly, this rule has no application here, since Grundy has continuously worked

for the BOP and has never worked in private practice representing a private

client.

In sum, I conclude there was no merit to defendants’ motion to disqualify

Grundy, and thus the district court did not abuse its discretion in denying that

(...continued)
3

1.9(a) was harmless. In particular, the jury acquitted defendants LaVallee and
Schultz of the substantive charge that alleged the beating of inmate William
Turner. Further, LaVallee’s and Schultz’s conspiracy convictions rested upon
their role in beating inmate Pedro Castillo and then concealing evidence of that
beating.

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motion.

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