United States v. Scott

18-2836(L)
United States v. Scott

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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August Term 2019

(Argued: November 22, 2019 Decided: November 5, 2020)

Docket Nos. 18-2836, 18-2882
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UNITED STATES OF AMERICA,
Appellee,

—v.—

KATHY SCOTT, AKA KATHY TODD,
GEORGE SANTIAGO, JR.,
Defendants-Appellants,

CARSON MORRIS,
Defendant.

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Before:
KEARSE, SULLIVAN, and PARK, Circuit Judges.

Defendants-Appellants Kathy Scott and George Santiago, Jr. – former
correction officers with the New York State Department of Correction and
Community Supervision – appeal their convictions in the United States District
Court for the Southern District of New York (Karas J.) for their role in the assault
of an inmate at the Downstate Correctional Facility in Fishkill, New York and in
its subsequent cover-up. On appeal, Defendants argue that (1) their convictions
under 18 U.S.C. § 241 for conspiracy to violate civil rights are invalid because there
was insufficient time for a conspiracy to form; (2) the district court committed
reversible error in instructing the jury that to prove that a defendant falsified
records in violation of 18 U.S.C. § 1519, the government was not required to prove
the defendant knew his or her conduct would obstruct a federal investigation; and
(3) § 1519 is unconstitutionally vague. We reject each of Defendants’ arguments.
In so doing, we hold that there is no set time for a conspiracy to form under § 241
so long as the surrounding facts and circumstances support the existence of an
agreement. We also reaffirm that § 1519 does not require knowledge of an
impending federal investigation, and find that the statute is not unconstitutionally
vague as applied to this case. For the reasons stated herein and in the summary
order issued simultaneously with this opinion, we AFFIRM.

_______________

RICHARD D. WILLSTATTER, Green & Willstatter,
White Plains, NY, for Defendant‐Appellant Kathy Scott.

DANIEL A. HOCHHEISER, Law Offices of Daniel A.
Hochheiser, Scarsdale, NY, for Defendant-Appellant George
Santiago, Jr.

ANDREW DEMBER, Assistant United States Attorney
(Anna M. Skotko, Won Shin, Assistant United States
Attorneys, on the brief), for Audrey Strauss, Acting United
States Attorney for the Southern District of New York,
New York, NY.

_______________

RICHARD J. SULLIVAN, Circuit Judge:

Defendants-Appellants Kathy Scott and George Santiago, Jr. appeal their

convictions in the United States District Court for the Southern District of New

York (Karas, J.) for conspiracy to deprive a person of civil rights, in violation of 18

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U.S.C. § 241; deprivation of civil rights, in violation of 18 U.S.C. §§ 242 and 2;

conspiracy to falsify records, in violation of 18 U.S.C. § 371; and falsification of

records, in violation of 18 U.S.C. § 1519. During the two-week jury trial, the

government presented evidence that Scott and Santiago, along with other officers

of the New York State Department of Correction and Community Supervision

(“DOCCS”), assaulted Kevin Moore, an inmate at the Downstate Correctional

Facility in Fishkill, New York. The evidence – which included the testimony of

fellow DOCCS officers Donald Cosman and Roberto Brown – further revealed that

Defendants took numerous steps to cover up the assault, including falsifying the

initial use-of-force incident report. Although Defendants challenge their

judgments of conviction on several grounds, this opinion is limited to their

challenges to the civil rights conspiracy and false records charges under 18 U.S.C.

§§ 241 and 1519. The remainder of their arguments on appeal are resolved in a

summary order issued simultaneously with this opinion. Finding no error, we

AFFIRM the judgments of the district court.

I. Background

Because Defendants appeal from their judgments of conviction following a

jury trial, we summarize the evidence in the light most favorable to the

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government. See United States v. Thompson, 896 F.3d 155, 159 (2d Cir. 2018).

Defendants, along with other correction officers, assaulted Moore, an inmate in

the custody of DOCCS, following his arrival at the Downstate facility. At the time,

Correction Officers Donald Cosman, Andrew Lowery, Aljamien Gamble, Jonathan

Rosario, and Roberto Brown had escorted Moore, Tyron Hollmond, and another

inmate to a housing unit complex. After the third inmate was taken to a cell in the

general population area, Cosman told Moore and Hollmond that due to a shortage

of available cells, they would be housed in the Forensic Diagnostic Unit, an area

typically reserved for inmates with mental health issues. Initially, Hollmond

refused to go to his cell, and requested that Cosman call his supervisor. Cosman

radioed his supervisor, Scott, for assistance, prompting Scott, Santiago, Correction

Officer Carson Morris, and a probationary officer to respond to the unit.

Although Hollmond eventually agreed to go to the cell, Moore became

agitated and expressed concern that being placed into the Forensic Diagnostic Unit

cell would change his health status in the prison records. After Moore began

arguing with Morris, Morris punched Moore in the chest, causing him to fall

backward. Santiago then grabbed Moore from behind and pulled him to the

ground, at which time multiple correction officers held Moore down. Scott then

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instructed Lowery to remove the probationary officers from the area, which he

did.

The remaining officers then beat Moore for approximately two to four

minutes. During the assault, as Moore was face down on the ground, Scott

grabbed Moore’s arm and put a handcuff on his right wrist while Rosario

restrained Moore’s legs. As the officers continued to assault Moore, Cosman

ripped a clump of dreadlocks from Moore’s head, and Morris repeatedly kneed

the left side of Moore’s abdomen. Although Moore did not resist the officers, Scott

ordered Lowery to further restrain Moore with a figure-four leg hold that

prevented Moore from defending himself. While Lowery applied the leg hold and

Scott held Moore’s right arm, Santiago kicked Moore’s right side and right eye.

Cosman also kicked Moore, and, even after both of Moore’s hands were

handcuffed, Santiago continued to punch Moore.

Although Moore repeatedly pleaded for the officers to stop, the beating

continued. Santiago even laughed and asked Moore, “Who’s the monster now?”

Scott App’x at 87. At no point during the assault did Scott instruct her

subordinates to relent.

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 Moore was left with substantial injuries, which were thoroughly

documented during his initial medical treatment. He was eventually taken to the

hospital, where doctors determined he had multiple fractures to his cheekbones

and eye socket on his right side, five fractured ribs on the left side of his body, and

a collapsed lung. He spent a week in two different hospitals and a second week

in the hospital at Rikers Island. At trial, a forensic pathologist who examined his

medical records and photographs concluded that the injuries could not have been

caused by falling or being brought to the ground. Instead, the pathologist testified

that the injuries to his face were inconsistent with a punch but were consistent

with a being hit by an object like a boot.

The government also presented evidence that Scott and Santiago, along with

the other correction officers, sought to cover up the assault. Immediately after the

assault, Santiago instructed Cosman to lift up his shirt, and struck him several

times with a baton to give the false impression that Moore had attacked Cosman.

Morris then rubbed the injury to make it appear more severe, and Scott

photographed the injury to memorialize it for the use-of-force documentation.

Santiago, Morris, and Cosman filled out the initial use-of-force report; at Scott’s

direction, they claimed that Moore was the aggressor. They then parroted this

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same story in subsequent use-of-force reports. Scott completed additional injury

reports stating that she, Santiago, Cosman, and Morris were the only eyewitnesses

to the incident, and directed the other officers present not to prepare incident

reports, despite the fact that they were required to do so under DOCCS policy.

Scott further informed Brown that he “would not be in the paperwork,” and

instructed him not to speak to anyone about the incident. Scott App’x at 403.

At the conclusion of the two-week trial, the jury convicted Defendants on

all four counts alleged in the indictment. The district court sentenced Scott to a

term of 100 months’ imprisonment to be followed by a one-year term of supervised

release, and sentenced Santiago to a term of 87 months’ imprisonment to be

followed by a one-year term of supervised release.

II. Discussion

Defendants raise numerous issues on appeal. This opinion addresses three

of them: (1) whether there was insufficient evidence to support Defendants’

convictions for conspiracy to deprive Moore of his civil rights, in violation of 18

U.S.C. § 241; (2) whether the jury instructions under 18 U.S.C. § 1519 were

erroneous; and (3) whether 18 U.S.C. § 1519 is unconstitutionally vague. We

address each point in turn.

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 A. There Was Sufficient Evidence Supporting Defendants’ Convictions for
Conspiracy to Violate § 241
We review the sufficiency of the evidence de novo. United States v. Klein, 913

F.3d 73, 78 (2d Cir. 2019). In challenging the jury’s verdict, a “movant bears a

heavy burden.” Id. (internal quotation marks omitted). “A reviewing court must

credit every inference that could have been drawn in the government’s favor, and

affirm the conviction so long as, from the inferences reasonably drawn, the jury

might fairly have concluded guilt beyond a reasonable doubt.” Id. (alterations,

internal citation, and internal quotation marks omitted).

In arguing that there was insufficient evidence to support their convictions

for conspiracy to deprive Moore of his civil rights in violation of 18 U.S.C. § 241,

Scott and Santiago principally contend that the assault was spontaneous and that

there was insufficient evidence of an agreement among the correction officers.

Section 241 makes it unlawful for “two or more persons [to] conspire to injure,

oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of

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

States.” 18 U.S.C. § 241.

“The gist of conspiracy is, of course, agreement.” United States v. Beech–Nut

Nutrition Corp., 871 F.2d 1181, 1191 (2d Cir. 1989). Nevertheless, to establish the

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existence of a conspiracy, the government “need not present evidence of a formal

or express agreement,” and may instead rely on proof the parties had a “tacit

understanding to engage in the offense.” United States v. Amato, 15 F.3d 230, 235

(2d Cir. 1994). “[T]he evidence must be sufficient to permit the jury to infer that

the defendant and other alleged coconspirators entered into a joint enterprise with

consciousness of its general nature and extent.” Beech–Nut Nutrition Corp., 871

F.2d at 1191.

Here, Scott and Santiago essentially argue that the frenetic, rapidly

developing assault of Moore occurred spontaneously, without an agreement, and

that there was therefore no conspiracy. We disagree, and reject Defendants’

contention that there must be an extended period of premeditation or a distinct

verbal agreement prior to the impetus of the assault. The existence of a conspiracy

must necessarily be determined by the facts at issue. While not every group

beating is per se a conspiracy, the record here demonstrates that Defendants

entered into a tacit agreement to violate Moore’s civil rights. Although Morris’s

initial punch may have been spontaneous, the evidence at trial revealed that the

other officers acted in concert and purposefully joined the assault. Santiago

quickly grabbed Moore from behind to force him to the ground. Scott then

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ordered two probationary officers removed from the area, which the jury could

reasonably infer reflected an approval of what followed and a conscious intent to

reduce the number of witnesses as it continued. Scott and Lowery worked

together to restrain Moore, with Scott pulling Moore’s arm behind his back and

handcuffing his right wrist while Lowery, at Scott’s command, applied a figure-

four leg hold that restricted Moore’s ability to protect himself. Santiago,

leveraging the restraint provided by Lowery and Scott, continued to physically

beat Moore. Although no one action on its own is necessarily sufficient, the

evidence here demonstrates that the group consciously colluded for at least a

couple minutes to deprive Moore of his civil rights and that Scott used her

supervisory authority to facilitate that assault.

Viewing the evidence in the light most favorable to the government, as we

must, we have no hesitation in finding that there was sufficient proof for the jury

to conclude that Scott and Santiago entered into a tacit agreement with each other

and the other officers to assault Moore, thereby depriving him of rights secured to

him by the Constitution, in violation of 18 U.S.C. § 241.

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 B. The District Court Properly Instructed the Jury That § 1519 Does Not
Impose a Nexus Requirement

Defendants next argue that the district court incorrectly instructed the jury

as to the elements of 18 U.S.C. § 1519.

Where, as here, a defendant fails to object to the jury charge, we review only

for plain error. United States v. Bahel, 662 F.3d 610, 634 (2d Cir. 2011). Under this

standard, “an appellate court may, in its discretion” grant relief if the defendant

demonstrates (1) error, (2) that is plain, (3) that affected the defendant’s substantial

rights, which typically means there is a “reasonable probability that the error

affected the outcome of the trial,” and (4) that “seriously affect[ed] the fairness,

integrity[,] or public reputation of judicial proceedings.” United States v. Marcus,

560 U.S. 258, 262 (2010) (internal quotation marks omitted).

Section 1519 makes it a crime to:

knowingly . . . falsif[y], or make[] a false entry in any record,
document, or tangible object with the intent to impede, obstruct, or
influence the investigation or proper administration of any matter
within the jurisdiction of any department or agency of the United
States or any case filed under title 11, or in relation to or
contemplation of any such matter or case.

18 U.S.C. § 1519. At trial, the district court instructed the jury that the government

was required to prove that the defendant acted “knowingly” and with the “intent

to impede, obstruct[,] or influence an investigation or a matter within the

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jurisdiction of or in relation to or in contemplation of a department or agency of

the United States government,” while explaining that the prosecution was “not

required to prove the defendant . . . knew his or her conduct would obstruct a

federal investigation, or that a federal investigation would take place.” Santiago

App’x at 132.

Defendants argue that the jury instructions were erroneous in light of the

Supreme Court’s decision in Marinello v. United States, 138 S. Ct. 1101 (2018), which

they contend required the jury to find a “nexus in time, causation, or logic”

between the falsification of records and a “particular federal investigation” that

was “reasonably foreseeable” to the defendant, Scott Br. at 39. We disagree.

In Marinello, the Supreme Court held that to prove a claim under the

“Omnibus Clause” in 26 U.S.C. § 7212(a) – a provision that forbids “corruptly or

by force or threats of force . . . obstruct[ing] or imped[ing], or endeavor[ing] to

obstruct or impede, the due administration of [the Tax Code]” – the government

must establish a nexus between the defendant’s acts and a specific, tax-related

proceeding that was either pending or reasonably foreseeable at the time of the

alleged cover-up. 138 S. Ct. at 1104–05. The Supreme Court highlighted that, in

assessing the reach of a federal criminal statute, it “traditionally exercise[s]

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restraint . . . , both out of deference to the prerogatives of Congress and out of

concern that a fair warning should be given . . . of what the law intends to do if a

certain line is passed.” Id. at 1106 (internal quotation marks omitted). Using these

principles as a guide, the Court concluded that the language of the statute

counseled a narrow reading. Specifically, it noted that “the verbs ‘obstruct’ and

‘impede’ suggest an object,” and the broader statutory context suggests that “due

administration of the Tax Code” referred to “specific, targeted acts of

administration.” Id.

But we assessed the very arguments raised by Defendants with respect to

§ 1519 in United States v. Gray, 642 F.3d 371 (2d Cir. 2011) and concluded that § 1519

contains no comparable nexus requirement. Specifically, we considered the

relevance of the Supreme Court’s decisions in United States v. Aguilar, 515 U.S. 593

(1995), and Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) – both of which

were discussed and relied upon by the Supreme Court in Marinello – and found

that, unlike the statutes in those cases, § 1519 makes no reference to a concrete

proceeding. See Gray, 642 F.3d at 376 (noting that “the obstruction statutes at issue

in Aguilar and Arthur Andersen, respectively, addressed conduct affecting the ‘due

administration of justice’ and ‘official proceeding[s],’” whereas § 1519 “requires

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proof that the defendant engaged in obstructive conduct ‘with the intent to

impede, obstruct, or influence the investigation or proper administration of any

matter within the jurisdiction of any department or agency of the United States’”). We

found the language of § 1519 to be “unambiguous[ly]” broad, and noted that the

legislative history further made clear that the statute was “specifically meant not

to include any technical requirement . . . to tie the obstructive conduct to a pending

or imminent proceeding or matter.” Id. at 377 (quoting S. Rep. No. 107-146, at 14–

15 (2002), 2002 WL 863249, at *12–13) (emphasis omitted).

In light of the clear differences between the statutory language at issue in

Marinello and that of § 1519, we are unpersuaded that Marinello overrules Gray.

Accordingly, Gray remains good law in this Circuit, and, therefore, the district

court did not err – let alone plainly err – in instructing the jury that § 1519 does not

have a nexus requirement.1

1In contending that the government failed to prove a nexus, Scott also argues that “there was insufficient
proof that the reports here . . . concerned a matter within the jurisdiction of an agency of the United States
when made.” Scott Br. at 42. To the extent that Scott is making a jurisdictional challenge, we find that there
was clearly federal jurisdiction here, since 18 U.S.C. §§ 241 and 242 apply to state officers, and, as even Scott
acknowledges, “the FBI and the [U.S. Attorney’s Office] have the power to investigate civil rights violations
within state prisons.” Scott Br. at 42.

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 C. Section 1519 Is Not Unconstitutionally Vague

Having failed to establish that the district court erroneously instructed the

jury, Scott, but not Santiago, contends in the alternative that § 1519 is

unconstitutionally vague. A statute raises vagueness concerns if it does not

“define the criminal offense with sufficient definiteness that ordinary people can

understand what conduct is prohibited and in a manner that does not encourage

arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357

(1983). The “void-for-vagueness doctrine addresses concerns about (1) fair notice

and (2) arbitrary and discriminatory prosecutions.” Skilling v. United States, 561

U.S. 358, 412 (2010). Outside of the First Amendment context, we look to whether

the “statute is vague as applied to the particular facts at issue.” Holder v.

Humanitarian Law Project, 561 U.S. 1, 18 (2010). As a result, one whose conduct is

“clearly proscribed” by a statute cannot challenge it as void for vagueness. United

States v. Strauss, 999 F.2d 692, 698 (2d Cir. 1993).

While Scott acknowledges that § 1519 makes it illegal to knowingly make a

false entry in a record “with the intent to impede, obstruct, or influence the

investigation or proper administration of any matter,” she contends that a literal

application of the statute would permit a conviction where a defendant knowingly

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makes a false entry “in relation to or contemplation of any such matter” even if the

defendant did not have the intent to impede a future investigation. See 18 U.S.C.

§ 1519. Accordingly, Scott maintains that the lack of a specific intent requirement

for contemplated investigations renders the statute impermissibly vague. But “the

Supreme Court has frequently refused to adopt ‘the most grammatical reading of

the statute’ when a lack of intent would risk punishing otherwise innocent

conduct.” United States v. Kernell, 667 F.3d 746, 752 (6th Cir. 2012) (quoting United

States v. X–Citement Video, Inc., 513 U.S. 64, 70 (1994)). Instead, when there are two

readings of the statute, one constitutional and one not, we presume that Congress

intended the former. See id. (citing X–Citement, 513 U.S. at 74). Thus, as the Sixth

Circuit did in Kernell, we hold that a defendant must knowingly act with the intent

to impede an investigation to be liable under the statute – just as the district court

instructed. Such a reading does not raise vagueness concerns.

When read in this manner, § 1519’s scienter requirement alleviates any

lingering concerns about fair notice. See Hill v. Colorado, 530 U.S. 703, 732 (2000)

(finding that vagueness concerns are “ameliorated” by the fact that a statute

contains a scienter requirement); see also United States v. Moyer, 674 F.3d 192, 211

(3d Cir. 2012) (“Section 1519’s scienter requirement, moreover, eliminates any

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concerns regarding statutory vagueness.”). And it is clear that the statute was not

vague as applied to Scott’s conduct, which involved the filing of a false injury

report and the orchestration of false use-of-force reports and photographs

designed to mislead prison administrators and others into believing that Moore

was the aggressor, as opposed to the victim of a brutal assault. See Moyer, 674 F.3d

at 211 (“Any person of ordinary intelligence – let alone a [law enforcement officer]

– would comprehend that this statute prohibits . . . officer[s] from knowingly

writing a false report with the intent to impede an ongoing, or future,

investigation.”). We therefore reject Scott’s challenge to the constitutionality of

§ 1519.

III. Conclusion

For the reasons discussed above, we AFFIRM the decision of the district

court with respect to Defendants’ challenges under §§ 241 and 1519.

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