United States v. Daniels

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-30624

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HARRISON DANIELS, PATRICK SAYES,
JOHN SWAN, Sergeant,

Defendants-Appellants.

Appeals from the United States District Court
for the Middle District of Louisiana

January 23, 2002

Before GARWOOD and WIENER, Circuit Judges, and FALLON,1 District Judge.

GARWOOD, Circuit Judge:

Defendants-appellants Harrison Daniels (Daniels), Patrick Sayes

(Sayes), and John Swan (Swan) appeal their respective convictions under

18 U.S.C. § 242. We affirm.

Facts and Proceedings Below

1
Honorable Eldon E. Fallon, United States District Judge, Eastern
District of Louisiana, sitting by designation.
 Daniels, Sayes, and Swan were corrections officers at the

Louisiana State Penitentiary at Angola (Angola or the prison). They

were indicted and convicted in connection with a beating inflicted on

Rayfield Jackson (Jackson), a prisoner at Angola, that occurred on or

about December 22, 1997. At the time of the incident, Daniels and

Swan held the rank of sergeant and Sayes was a lieutenant.2 In

essence, the charges against the defendants were as follows: Daniels

and Swan committed a brutal battery of Jackson that left Jackson

severely injured. Sayes, the supervising officer, witnessed the

attack, and willfully permitted and made no attempt to stop it.

Following the attack, the three defendants allegedly deprived Jackson

of access to medical care. The charges were brought pursuant to 18

U.S.C. § 242.3

2
Among the prison security staff, sergeant is the lowest rank above
cadet. A new guard who has completed basic training begins work at the
prison with the rank of cadet and, assuming his performance is
satisfactory, is automatically promoted to sergeant after working for
six months. Lieutenant is the next highest rank and a lieutenant has
supervisory authority over sergeants.
3
18 U.S.C. § 242 provides:

“Whoever, under color of any law, statute,
ordinance, regulation, or custom, willfully
subjects 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,
or to different punishments, pains, or penalties,
on account of such person being an alien, or by
reason of his color, or race, than are prescribed
for the punishment of citizens, shall be fined
under this title or imprisoned not more than

2
 An indictment was returned on May 25, 19994 charging the three

defendants as follows:

“Count 1: On or about December 22, 1997, in the Middle
District of Louisiana, defendants, HARRISON DANIELS and
JOHN SWAN, while acting as Corrections Sergeants with the
Louisiana State Penitentiary in Angola, Louisiana, under
color of the laws of the State of Louisiana, aiding and
abetting each other, did willfully assault and beat
Rayfield Jackson, resulting in bodily injury to Rayfield
Jackson, and did thereby willfully deprive Rayfield
Jackson of the right secured and protected by the
Constitution and laws of the United States not to have
cruel and unusual punishment inflicted upon him.
All in violation of Title 18, United States Code,
Sections 242 and 2.

Count 2: On or about December 22, 1997, in the Middle
District of Louisiana, defendant, PATRICK SAYES, while
acting as a Corrections Lieutenant with the Louisiana
State Penitentiary in Angola, Louisiana, under color of
the laws of the State of Louisiana, did willfully permit
other officers with the Louisiana State Penitentiary in
Angola, Louisiana in his presence and under his
supervision, namely Corrections Sergeants Harrison Daniels
and John Swan, unlawfully to assault and beat Rayfield
Jackson, while Rayfield Jackson was in the custody of

one year, or both; and if bodily injury
results from the acts committed in violation
of this section or if such acts include the
use, attempted use, or threatened use of a
dangerous weapon, explosives, or fire, shall
be fined under this title or imprisoned not
more than ten years, or both; and if death
results from the acts committed in violation
of this section or if such acts include
kidnapping or an attempt to kidnap, aggravated
sexual abuse, or an attempt to commit aggravated
sexual abuse, or an attempt to kill, shall be
fined under this title, or imprisoned for any
term of years or for life, or both, or may
be sentenced to death.”
4
For reasons we will explain below, this was actually the second
indictment returned against the defendants. The first, identical in all
relevant respects, had been dismissed without prejudice.

3
 those officers, and did willfully fail to prevent these
unlawful assaults; resulting in bodily injury to Rayfield
Jackson, and did thereby willfully deprive Rayfield
Jackson of the right preserved and protected by the
Constitution and laws of the United States not to be
deprived of liberty without due process of law, which
includes the right to be kept free from harm while in
official custody.
All in violation of Title 18, United States Code,
Sections [sic] 242.

Count 3: On or about December 22, 1997, in the Middle
District of Louisiana, defendants, PATRICK SAYES, HARRISON
DANIELS, and JOHN SWAN, while acting as Corrections
Officers with the Louisiana State Penitentiary in Angola,
Louisiana, under color of the laws of the State of
Louisiana, aiding and abetting one another, did willfully
prevent Rayfield Jackson from receiving medical care and
treatment, resulting in bodily injury to Rayfield Jackson,
and did thereby willfully deprive Rayfield Jackson of the
right secured and protected by the Constitution and laws
of the United States not to have cruel and unusual
punishment inflicted upon him.
All in violation of Title 18 United States Code,
Sections 242 and 2.” Indictment, Record Excerpts for
Daniels at Tab 5.

The three defendants were tried together in the United States

District Court for the Middle District of Louisiana. On January 21,

2000, the jury returned a verdict finding Daniels guilty as to Counts

1 and 3, Swan guilty as to Count 1 and not guilty as to Count 3, and

Sayes guilty as to Count 2 and not guilty as to Count 3. On May 5,

2000, following a sentencing hearing, the district court sentenced

Daniels to ninety-six months in prison, Swan to eighty-seven months

in prison, and Sayes to eighty-seven months in prison.

According to the trial testimony, the beating took place

4
sometime on the morning of December 22, 1997.5 On that date, the

defendants were assigned to work in the prison’s Cuda 1 unit (Cuda).

Cuda is a unit or tier within Camp J, the prison’s maximum security

disciplinary facility. During a given shift, two sergeants are

assigned to each unit. The sergeants are under the supervision of a

lieutenant who has charge over several units at a given time. A tier

consists of a row of fourteen cells separated by concrete walls. A

unit has showers and a lobby at one end, followed by cells numbered

one through fourteen, with cell 1 being closest to the lobby and cell

14 at the far end. Jackson was housed in Cuda’s cell 8.

At trial, defendant Sayes, Jackson, and six other prisoners

incarcerated in the Cuda unit testified regarding the events of the

morning of December 22, 1997. Each witness had a different vantage

point and their testimony diverged with regard to some particulars.

But the testimony was generally consistent with regard to several

relevant facts, which we now describe. On that morning, defendant

Daniels went to Jackson’s cell to escort Jackson to the medical

clinic to receive an injection.6 Angola policy requires that

5
As we discuss further below, the core of Daniels and Swan’s
defense was that the prosecution did not prove that the beating occurred
at this time, during their work shift, and thus the prosecution did not
prove that Daniels and Swan were involved in the beating. In his
arguments on appeal, Swan effectively concedes that he was present.
Sayes has consistently admitted being present and testified that Daniels
and Swan were involved in the incident. Neither Daniels nor Swan
testified.
6
Because of an unrelated medical condition, Jackson was required
to receive an interferon shot three times a week.

5
prisoners in the Camp J facility wear restraints when they are

transported and Daniels was carrying a set of metal handcuffs when he

approached Jackson’s cell. Jackson informed Daniels that, because of

a skin condition, he was required to wear plastic “flex cuffs”

instead of metal handcuffs. Daniels insisted on using the metal

cuffs and the two began to argue through the bars of Jackson’s cell.

As the argument escalated, Daniels spat a mouthful of sunflower seeds

into Jackson’s face. Jackson allegedly spat back at Daniels.

Daniels then procured a bucket of water and doused Jackson with it.7

Daniels then telephoned Sayes and explained that he needed a set

of flex cuffs to restrain Jackson. Sayes arrived at the Cuda tier

and brought the flex cuffs to Daniels. Although he now had flex

cuffs available, Daniels restrained Jackson with the metal handcuffs.8

Jackson’s legs were also shackled and he was restrained with a waist

chain around his waist. Jackson was removed from his cell and

Daniels began violently kicking and punching Jackson. Sayes

witnessed the beating and neither did nor said anything to attempt to

stop it. Daniels moved Jackson down the tier, to the lobby, where

Swan joined Daniels in attacking Jackson. At one point, Swan

apparently struck Jackson forcefully on the side of the head with a

shoe. Although Sayes was not indicted for actively participating in

7
Jackson testified that Daniels threw a total of four buckets of
water on him and that Swan assisted Daniels by filling up the buckets.
Jackson also denied ever spitting back at Daniels.
8
Prosecution witnesses testified that Sayes ordered Daniels to use
the metal restraints. Sayes did not admit to this in his testimony.

6
the attack, there was testimony that Sayes encouraged the attackers

verbally and even struck a few blows himself.

After the beating, Jackson was made to crawl back to his cell on

his knees while Daniels continued to taunt and kick him. For several

hours, Jackson lay in his cell in severe pain. Daniels apparently

prevented a medic from checking on Jackson and did not apprise the

officers coming on to the next shift that Jackson had been injured.

Jackson finally got medical attention after midnight, nearly fourteen

hours after the assault.

Dr. James Hand examined and treated Jackson. Dr. Hand testified

that Jackson was brought in shortly after one o’clock on the morning

of December 23, 1997. Jackson had severe external and internal

injuries, including a collapsed lung, a ruptured kidney, broken ribs,

several broken vertebrae, a ruptured eardrum, internal bleeding, and

multiple contusions. Dr. Hand testified that, in his opinion,

Jackson’s injuries were at least ten to twelve hours old and were

consistent with a beating occurring thirteen hours before Dr. Hand

saw him.

When the extent of Jackson’s injuries became known, Angola

officials began an internal investigation into the incident. The

prison warden offered Sayes immunity for Sayes’s statement to the

prison investigator. Under the cloak of this immunity promise, Sayes

made two statements, one on December 24, 1997, and one on January 13,

1998, to Major Sivula, the official in charge of the prison’s

7
investigation. In his statements, Sayes admitted witnessing the

attack, identified Daniels and Swan as Jackson’s assailants, and

described some details of the incident.

After its initial investigation, the prison referred the matter

to the FBI. On January 14, 1998, Sivula contacted agent Rondalyn

Craft, the FBI agent in charge of the federal investigation. During

a telephone conversation, Sivula gave agent Craft some general

information about the incident and mentioned Sayes’s involvement in

it. Sivula and agent Craft testified at a pretrial motions hearing

that they did not discuss Sayes’s specific statements or the

existence of those statements. Agent Craft and another agent, Thomas

McNulty, arrived at Angola on January 21, 1998 and began their

investigation by reviewing prison log books and other records. They

interviewed Jackson and two other prisoners, who corroborated

Jackson’s account of the incident. Agent Craft also interviewed Dr.

Hand. As agent Craft was leaving the prison that day, Sivula

provided her with the personnel files of five corrections officers,

including the three defendants. Sayes’s personnel file contained

copies of Sayes’s immunized statements. Agent Craft later testified

that she was not aware at the time that the statements were in the

file and that she never read either statement until January 7, 1999.

McNulty testified at the pretrial hearing that he never read the

statements. On January 26, 1998, six other FBI investigators

interviewed the remaining eyewitnesses and prepared reports based on

8
those statements. These agents also testified at the pretrial

hearing that they had no knowledge of the existence or contents of

Sayes’s immunized statements.

In February 1998, a grand jury heard testimony and indicted

Daniels, Swan, and Sayes. Sayes moved to dismiss the indictment,

arguing that the Government had unlawfully used his immunized

statements, or evidence tainted by receipt of his immunized

statements, to support the indictment. To remove any cloud from the

indictment, the Government moved to dismiss the indictment without

prejudice and the district court granted the motion. The Government

then sought a second indictment before a different grand jury. This

time the Government presented the grand jury testimony through agent

Dan Fontenot, who had no previous connection to the investigation.

Agent Fontenot testified at the pretrial hearing that he had no

knowledge of the existence or content of Sayes’s statements. In his

summary testimony to the grand jury, agent Fontenot reviewed agent

Craft’s written reports of her January 21, 1998, interviews with

Jackson, the doctor, and the two eyewitnesses and he presented the

reports of the six other FBI agents who had interviewed witnesses.

The grand jury returned its indictment of the defendants on May 25,

1999.

The defendants raise several issues on appeal, which we now

address.

Discussion

9
1. The Severance Issue

All three defendants complain that the district court erred in

refusing to sever the trial of Sayes from that of Daniels and Swan.

Each defendant urged severance in pre-trial motions and the motions

were reurged at various points during the trial. Rule 14 of the

Federal Rules of Criminal Procedure provides in relevant part: “If it

appears that a defendant or the government is prejudiced by a joinder

. . . of defendants in an indictment or information or by such

joinder for trial together, the court may . . . grant a severance of

defendants or provide whatever other relief justice requires.” We

review the district court’s denial of a motion for severance for

abuse of discretion. United States v. Peterson, 244 F.3d 385, 393

(5th Cir. 2001). “To prevail, the defendant must show that: (1)

the joint trial prejudiced him to such an extent that the

district court could not provide adequate protection; and (2) the

prejudice outweighed the government's interest in economy of

judicial administration.” Id. (internal quotation marks

omitted).

The defendants argue that they were prejudiced because their

defenses were mutually antagonistic and irreconcilable. Sayes

testified that he witnessed Daniels and Swan attacking Jackson

and that he was so shocked by the brutality of the attack that he

was paralyzed into inaction. The core of Sayes’s defense was

effectively that he did not willfully permit the deprivation of

10
Jackson’s rights. Neither Daniels nor Swan testified. Their

defense remained ambiguous throughout much of the trial and it

ultimately evolved into an argument that the beating did not

occur during their shift. The core of their defense was simply

that the prosecution had not proved that they were they were the

perpetrators of the beating.

The Supreme Court has explained that “[m]utually

antagonistic defenses are not prejudicial per se.” Zafiro v.

United States, 113 S.Ct. 933, 938 (1993). Furthermore, even if

prejudice is shown, Rule 14 “leaves the tailoring of the relief

to be granted, if any, to the district court’s sound discretion.”

Id. To promote judicial economy and the interests of justice,

the federal system prefers joint trials of defendants who are

properly charged in joint indictments. Id. at 937. “[A]

district court should grant a severance under Rule 14 only if

there is a serious risk that a joint trial would compromise a

specific trial right of one of the defendants, or prevent the

jury from making a reliable judgment about guilt or innocence.”

Id. at 938.

Zafiro teaches that joint defendants face a heavy burden in

demonstrating to a district court that antagonistic defenses

warrant granting a severance motion. The burden is

correspondingly heavier when, on appeal, they seek to demonstrate

that the district court abused its discretion by declining to do

11
so. Even prior to the Supreme Court’s decision in Zafiro, this

court articulated a stringent standard for finding that defenses

are so antagonistic as to compel severance: the defenses must be

so diametrically opposed that “the jury, in order to believe the

core of testimony offered on behalf of [one] defendant, must

necessarily disbelieve the testimony offered on behalf of his co-

defendant.” United States v. Berkowitz, 662 F.2d 1127, 1134 (5th

Cir. Unit B 1981). The conflict must concern the core or essence

of a defense, not merely “minor or peripheral matters.” Id.

Even when such a conflict is present, giving rise to the risk of

prejudice, the district court should take into account the public

interests in judicial economy and the administration of justice

served by joint trials and the possibility that limiting

instructions or other less drastic measures will suffice to cure

any risk of prejudice. See Zafiro, 113 S.Ct. at 938; see also

United States v. Matthews, 178 F.3d 295, 299 (5th Cir. 1999)

(“Severance is not automatically required when co-defendants

present mutually antagonistic defenses.”).

For several reasons, we hold that the defendants have not

shown that the district court abused its discretion by denying

their motions for severance. First, it is arguable at best that

the defenses in this case were mutually antagonistic under the

Berkowitz standard. The core of Sayes’s defense was not that

Daniels and Swan were guilty of the beating; it was that Sayes

12
was too paralyzed to act when he witnessed a beating, by whomever

it was performed. The identity of Jackson’s assailants was

peripheral to Sayes’s “paralysis” defense. The essence of

Daniels and Swan’s defense was that they were wrongly identified

as Jackson’s assailants. It is true that, were a jury to

conclude that Daniels and Swan were not Jackson’s attackers they

would be faced with a question regarding Sayes’s credibility.

But the jury could believe the core of Saye’s defense – that he

was paralyzed – and still believe that he was mistaken about the

identity of the attackers. This possibility would not

“compromise a specific trial right” of Sayes, Zafiro, 113 S.Ct.

at 938; there is no right entitling a defendant to have his

testimony believed. As far as prejudice to Daniels and Swan,

Sayes was just one of several eyewitnesses who testified that

Daniels and Swan were Jackson’s assailants. Dr. Hand’s testimony

regarding the age of Jackson’s injuries was substantial evidence

that the beating occurred on Daniels and Swan’s shift. And again

no specific trial right of the defendants was compromised. In a

separate trial, Daniels and Swan could not have asserted a right

to prevent Sayes from testifying against them (although Sayes

could have asserted his Fifth Amendment right to avoid testifying

unless he were tried first).

Even if there were some risk of prejudice here, the district

court gave the very limiting instructions that the Supreme Court has

13
approved as usually sufficient to cure this character of prejudice:

(1) that the jury must consider the evidence separately and

independently for each defendant and each charge; (2) that the

government’s burden was to prove each defendant’s guilt beyond a

reasonable doubt; (3) that no inferences must be drawn from a

defendant’s exercise of the right to silence; and (4) that statements

by the lawyers, including opening and closing arguments, are not

evidence. See Zafiro, 113 S.Ct. at 939. The district court further

instructed the jury that it could choose to believe one portion of a

witness’s testimony while disbelieving another portion.

Moreover, the judicial economy interest served by a joint trial

was particularly strong in this case. Virtually all of the evidence,

including witness testimony, derived from the same sources. Most of

the witnesses were prisoners or personnel from a maximum security

prison. This circumstance created a significant logistical burden

that would have been doubled if the severance motions were granted.

Further, the defendants did not specifically articulate the conflict

they perceived between their defenses until well into the trial, if

ever. As late as the close of the prosecution’s case, counsel for the

defense offered the court only vague and conclusory assertions that

the defense theories were in conflict.

All things considered, the district court did not abuse its

discretion by denying the motions to sever.

2. The Eighth Amendment/Fourteenth Amendment Issue

14
 We turn now to the next ground for appeal: the contention by

Daniels and Swan that the evidence was not sufficient to sustain their

convictions because the indictment charged that the assault violated

Jackson’s Eighth Amendment right to be free of cruel or unusual

punishment rather than his Fourteenth Amendment right to due process.

Daniels and Swan made motions for acquittal on this ground at the

close of the Government’s case and at the close of all the evidence.

This court reviews the denial of a motion for a judgment of acquittal

de novo. United States v. Garcia, 242 F.3d 593, 596 (5th Cir. 2001).

The evidence is sufficient if, drawing all reasonable inferences and

credibility determinations in the light most favorable to the

prosecution, a rational trier of fact could have found that the

evidence established the essential elements of the crime beyond a

reasonable doubt. Id.

Counts 1 and 3 of the indictment, which stated the charges

against Daniels and Swan, accused those defendants of depriving

Jackson of his right “not to have cruel and unusual punishment

inflicted upon him.” These terms, of course, echo the language of the

Eighth Amendment and the prosecution, during the course of trial, made

clear that it was proceeding on an Eighth Amendment deprivation

theory. But the essential elements of the offense defined in 18

U.S.C. § 242 do not confine the offense to a deprivation of only some

limited subset of constitutional rights. The relevant elements are

that a person (1) acting under color of law; (2) “willfully

15
subjects any person . . . to the deprivation of any rights,

privileges, or immunities secured or protected by the

Constitution or laws of the United States.” 18 U.S.C. § 242

(emphasis added). An indictment is sufficient to sustain the

resulting conviction if “the factual predicate of the indictment is

identical to that of the conviction.” United States v. Arlen, 947

F.2d 139, 144 (5th Cir. 1991); see also United States v. Young, 730

F.2d 221, 224 (5th Cir. 1984). In this case, there was no variance

between the factual predicate charged in the indictment and that

developed at trial. Daniels and Swan were charged with willfully

assaulting and beating Jackson and willfully preventing him from

receiving medical care, all on or about December 22, 1997. The

indictments set forth particular facts sufficient to give these

defendants notice of the allegations against them; the “acts and

intent” that make up the crime were “set forth in the indictment, with

reasonable particularity of time, place, and circumstances.” United

States v. Cruikshank, 92 U.S. 542, 558 (1875); cf. Stirone v. United

States, 80 S.Ct. 270, 273 (1960) (defendant could not be tried for

interference with interstate commerce in steel when indictment charged

only interference with interstate commerce in sand); Young, 730 F.2d

at 224 (distinguishing Stirone from case in which the facts alleged in

the indictment were identical to those facts on which the conviction

rested).

If the factual predicate was sufficient to establish a

16
deprivation of Jackson’s Fourteenth Amendment due process rights, then

it is sufficient to support a conviction under section 242 and that

evidentiary sufficiency is not diminished merely because the

indictment described the constitutional violation with language drawn

from the Eighth Amendment.9 On appeal, Daniels and Swan do not deny

that the charged conduct would constitute a Fourteenth Amendment due

process deprivation. Indeed, in his brief to this court, appellant

Swan expressly concedes that it may constitute such a violation. At

any rate, in Valencia v. Wiggins, 981 F.2d 1440 (5th Cir. 1993), we

explained that a claim of excessive force by a law enforcement officer

is correctly examined under the same standard regardless whether the

claim arises under the Eighth Amendment or the Fourteenth Amendment.

See id. at 1447. In Valencia, we applied the standard developed by

the Supreme Court in the context of Eighth Amendment claims involving

the use of excessive force against convicted prisoners to the context

of a pretrial detainee’s claim arising under the Due Process Clause.

Id. at 1445 — 47 (applying Whitley v. Albers, 106 S.Ct. 1078 (1986)

and Hudson v. McMillian, 112 S.Ct. 995 (1992)). We found that many of

the Supreme Court’s “concerns in Whitley were not limited to Eighth

Amendment claims but ‘arise whenever guards use force to keep order.’”

Id. at 1446 (quoting Hudson, 112 S.Ct. at 998); see also Rankin v.

9
Although the prosecution insisted it was proceeding on an Eighth
Amendment theory, the district court, during the colloquy on the
defendants’ motion, made clear that the particular constitutional
provision creating Jackson’s right was irrelevant to the deprivation
element of the § 242 charge.

17
Klevenhagen, 5 F.3d 103, 106 (5th Cir. 1993).

In its instructions to the jury, the district court stated: “In

order to prove an excessive force violation, the Government must prove

that the defendant under consideration unnecessarily and wantonly

inflicted pain on an inmate.”10 This language mirrors the legal

standard affirmed by the Supreme Court in Hudson. Hudson, 112 S.Ct.

at 998; see also Whitley, 106 S.Ct. at 1084. Daniels and Swan raise

no challenge to this jury instruction on appeal. The defendants rely

on George v. Evans, 633 F.2d 413 (5th Cir. 1980), in which we stated

that “[a]n isolated assault by an individual guard on an inmate is

not, within the meaning of the eighth amendment, punishment.” Id. at

415. In Hudson, the Supreme Court expressly left open the question

whether George correctly stated the law. Hudson, 112 S.Ct. at 1001.

In George, we also said, “Whether or not an eighth amendment violation

can be established, the use of undue force by a prison guard is

actionable as a deprivation of fourteenth amendment due process

rights.” George, 633 F.2d at 416. As we have explained, a Fourteenth

10
The charge goes on to state in this connection:

”Whether a use of force against a prison inmate is
unnecessary or wanton depends on whether force was applied
in a good faith effort to maintain or restore discipline, or
whether it was done maliciously or sadistically to cause
harm.
To act maliciously means to intentionally do a wrongful
act without just cause or excuse, with an intent to use
unnecessary force or under circumstances that show an evil
intent.”

18
Amendment deprivation may be predicated on the same facts as an Eighth

Amendment deprivation. A Fourteenth Amendment violation is sufficient

to satisfy section 242's constitutional deprivation element. In any

event, the defendants do not contend either that the factual predicate

in this case was insufficient to constitute a Fourteenth Amendment

deprivation or that the jury instructions were fatally insufficient

for that purpose.11

3. The Use of Sayes’s Immunized Statements

Sayes moved prior to trial to have the May 25, 1999 indictment

dismissed, contending that the grand jury heard evidence that was

derived from and tainted by Sayes’s immunized statements to prison

investigators. After reviewing the evidence, the district court

denied the motion. On appeal, Sayes contends that the denial of his

motion to dismiss was in error. If a defendant shows that he has made

immunized statements regarding matters related to the federal

prosecution, the Government must establish by a preponderance of the

evidence that the evidence relied upon by the grand jury was derived

11
We also observe that the evidence in this case may well have been
sufficient (it was in Hudson) to permit the trier of fact to conclude
that the attack was not isolated and unauthorized. Jackson testified
that, after the attack, Daniels bragged that he had beaten other inmates
and that the warden had assigned him to Cuda “to clear things up.” Cf.
Hudson, 112 S.Ct at 1002 (noting that there had been testimony that the
defendants had beaten another prisoner in addition to the plaintiff).
There was ample testimony, including from Sayes himself, that Sayes, the
lieutenant with supervisory authority over the unit, observed the attack
and took no action to attempt to stop it. There was some testimony that
Sayes encouraged and even participated in the attack. Cf. id. (noting
the factual finding that the supervising lieutenant expressly condoned
the use of force).

19
from independent, legitimate sources. Kastigar v. United States, 92

S.Ct. 1653, 1665 (1972); United States v. Cantu, 185 F.3d 298, 303

(5th Cir. 1999). The district court found that the Government had

satisfied this burden. This factual finding is reviewed for clear

error. United States v. Williams, 859 F.2d 327 (5th Cir. 1988).

On appeal, the Government does not contest the district court’s

findings that both of Sayes’s statements made to prison investigators

– one on December 24, 1997, the other on January 13, 1998 – were

compelled, immunized statements. See Garrity v. New Jersey, 87 S.Ct.

616, 620 (1967). The Government thus had the burden of proving that

its evidence was derived from legitimate, independent sources. We

find no clear error in the district court’s determination that the

Government satisfied this burden. These statements were not put

before, or ever mentioned to, the second grand jury (nor, of course,

was there any reference to them before the petit jury). The district

court found that the ten reports filed by the six FBI investigators

were free from any taint as the FBI agents had no knowledge of Sayes’s

statements or their existence at the time the reports were prepared.

The transcripts, which agent Fontenot presented to the grand jury, of

the testimony of four eyewitnesses described what those witnesses saw

and made no reference to any statement by Sayes. Agent Craft

testified that she had not seen or used Sayes’s statements in the

course of her investigation. Conclusory denials by an FBI agent are

not alone sufficient to carry the Government’s burden. United States

20
v. Seiffert, 463 F.2d 1089, 1092 (5th Cir. 1972). But agent Craft’s

credibility was for the district court to decide and her explanation

was bolstered by an affirmative showing that she relied on independent

sources. Cf. id. (a conviction must stand if the Government can

affirmatively show that it did not directly or indirectly use

immunized testimony). Agent Craft discovered the identities of

potential witnesses -- the prisoners and guards on the tier -- from

prison records and log books before she had access to Sayes’s

immunized statements. Jackson and the other eyewitnesses she

interviewed provided her with the names of officers involved,

including Sayes, based on their personal knowledge of events.

Sayes was in substantially the same position he would have been

in if he had not made any immunized statements.

4. The Exposure of the Prosecution Team to Immunized Statements

Sayes further contends that, even if the indictment was not

based on tainted evidence, the fact that the prosecution team was

eventually exposed to Sayes’s immunized statements required dismissal

of the entire prosecution team from the case. Sayes directs our

attention to cases from our sister circuits in which a prosecutor’s

exposure to immunized testimony presented a Kastigar issue, even

though the immunized testimony was not directly used at trial. In

United States v. McDaniel, 482 F.2d 305 (8th Cir. 1973), the Eighth

Circuit found that the district court failed to consider “the

immeasurable subjective effect” that reading immunized testimony had

21
on the prosecutor’s trial preparation. Id. at 312. Therefore, the

Government had failed to meet its heavy Kastigar burden of showing

that it had made no use of the immunized testimony. Id. Similarly,

in United States v. Semkiw, 712 F.2d 891 (3d Cir. 1983), the Third

Circuit remanded because the district court had failed to make any

factual findings regarding whether the prosecutor made any use of the

immunized testimony in the preparation and conduct of the trial and

thereby prejudiced the defendant. Id. at 895. The Semkiw court

stressed that the Government had the burden of proving that it had

made no use of the testimony. Id.

Several circuits have expressly disagreed with McDaniel and

Semkiw. See, e.g., United States v. Velasco, 953 F.2d 1467, 1474 (7th

Cir. 1992); United States v. Serrano, 870 F.2d 1, 17 (1st Cir. 1989);

United States v. Mariani, 851 F.2d 595, 600 (2d Cir. 1988); United

States v. Byrd, 765 F.2d 1524, 1531 (11th Cir. 1985). These courts

have emphasized that the mere subjective influence that exposure to

immunized testimony may have on a prosecutor’s thinking during trial

preparation, without more, is too tangential to constitute an

impermissible “use” of such testimony. Velasco, 953 F.2d at 1467;

Mariani, 851 F.2d at 600. We observe that neither Semkiw nor McDaniel

actually adopted a per se rule that any exposure to immunized

testimony requires disqualification of a prosecutor. See Semkiw, 712

F.2d at 895 (remanding because the appeals court did not know the

extent of the prosecutor’s access to immunized testimony, nor the use

22
she may have made of it, and thus was unable to determine whether the

defendant had been prejudiced); McDaniel, 482 F.2d at 312 (because of

unusual circumstances attending that case, the Government’s burden of

proof was “virtually undischargeable.”). The Eighth Circuit itself

has since distinguished McDaniel, limiting it to its “unusual

circumstances.” United States v. McGuire, 45 F.3d 1177, 1183 (8th

Cir. 1995) (“The determination of a McDaniel violation necessarily

turns on the facts of each case and again focusses on whether the

immunized testimony was used by the prosecutor exposed to it.”).

To satisfy Kastigar, use immunity must leave the witness in

substantially the same position as if he had asserted his Fifth

Amendment privilege not to testify. Kastigar, 92 S.Ct. at 1664.

There may be some cases in which the exposure of a prosecution team to

a defendant’s immunized testimony is so prejudicial that it requires

disqualification of the entire prosecution team. But this is not such

a case. As we have already explained, Sayes’s immunized statements

contained no relevant information that was not readily available from

legitimate, independent sources. It was uncontroverted that Jackson

had been beaten. Several eyewitnesses had already told investigators

that Sayes was present and did not intervene to stop the beating.

Sayes was not charged with participating in the attack, only with

observing it and willfully failing to do or say anything in an effort

to stop it. Some variation of his “paralysis” defense was Sayes’s

only effective defense strategy and a competent prosecutor would need

23
no special insight or information to discern this.12 Sayes’s defense

that he did not “willfully” permit the attack was his only available

avenue for minimizing his involvement. We also note that agent Craft

testified at the pretrial hearing that in a February 1998 conference

with Sayes’s attorney, Assistant United States Attorney Menner, the

lead prosecutor in this case, and herself, Sayes’s attorney revealed

to her and Menner, in the words of Sayes’s brief on appeal, “the

entire substance of Sayes’ immunized statements”. Craft likewise

testified that at that time she had not read either statement.

We conclude that no error is shown in the district court’s

refusal to disqualify the prosecution team.

5. The Supplemental Jury Instructions

Finally, Sayes objects to supplemental instructions that the

district court provided in response to questions from the jury during

their deliberations. Specifically, Sayes complains that the district

court’s answers to jury questions regarding the definitions of

“unlawful force” and “willfully” unfairly prejudiced Sayes’s defense.

When a challenge to jury instructions is properly preserved for

appeal, we review the challenged instructions for abuse of discretion.

United States v. Dien Duc Huynh, 246 F.3d 734, 738 (5th Cir. 2001).

“The standard of review applied to a defendant's claim that the

12
Arguably Sayes could have tried to establish that he was not
present when the incident occurred. But the prosecution would not have
had to make any special preparations to cope with this dubious strategy;
its case in chief already included overwhelming evidence that Sayes was
present.

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jury instruction was erroneous is whether the court's charge, as

a whole, is a correct statement of the law and whether it clearly

instructs jurors as to the principles of the law applicable to

the factual issues confronting them.” Id. (internal quotation

marks omitted). When a defendant has failed to properly preserve an

issue for appeal, this court will only review it for plain error.

United States v. Caucci, 635 F.2d 441, 447 (5th Cir. 1981). “Plain

errors or defects affecting substantial rights may be noticed although

they were not brought to the attention of the court.” Fed. R. Crim.

P.52(b). Because we find that Sayes’s objections to the district

court did not properly preserve the issues he now raises on appeal, we

review his challenges under the plain error standard.

Soon after the jury began deliberating, the foreman submitted

written questions asking the court, “What is the definition of

unlawful assault? Is there a definition for reasonable force in

handling inmates?” During a colloquy before the jury was brought back

into the courtroom, counsel for Sayes expressed the opinion that

rereading the court’s original charge on the definition of “excessive

force” would be a sufficient response. When the jury was recalled,

the court reread the excessive force charge and added, among other

things, “In Count 1, to use unnecessary force to Rayfield Jackson, or

excessive force, or unlawful force, that is all the same thing. He

unlawfully permitted it. And we talked about the duties of an

officer.” After the jury retired, counsel for Sayes made only the

25
following statement: “I have to object to –I’m not quite sure if we

answered their question.” Sayes’s counsel provided no further

explanation whatever of the objection and said nothing else. On

appeal, Sayes argues that the above quoted portion of the court’s

supplemental charge, especially the comment “He permitted it,” implied

that Sayes was guilty and improperly emphasized that Sayes’s failure

to intervene constituted guilt, regardless of his intent. Cf. United

States v. Carter, 491 F.2d 625, 634 (5th Cir. 1974) (there may be

reversible error when there is a reasonable possibility that a court’s

supplemental instructions implied guilt).

After further deliberations, the jury submitted a question

asking the court to define “willfully” as used in the indictment. In

response, the court reread the original charge on “willfulness.” At

the request of Sayes’s counsel, the court incorporated language from

the original charge on the deprivation of civil rights that emphasized

that the defendants must have acted with a “bad purpose” or “evil

motive.”13 The court ended its supplemental charge by adding the

13
The court’s supplemental instruction included the following:

“My charge to you is that throughout that indictment
whenever the term willful or willfully is used, it means an
act that is done voluntarily and intentionally and with the
specific intent to do something that the law prohibits; that
is, with an intent to violate a right protected by the
Constitution of the United States.
It means that when the defendant acts willfully he
committed the act or acts with a bad purpose or evil motive,
intending to deprive the victim of a right, which, as I said,
is secured by the Constitution.”

26
following paraphrase:

As I have told you, it is not necessary that the act
was intended specifically to deprive someone of a
constitutional right. What the charge is, is that he
deprived someone of a right that happens to be a
constitutional right, or that he did an act which deprived
a person of a constitutional right.
Whether he intended to deprive them of a right is not
the question. The question is whether he intended to do an
act that did deprive someone of a constitutional right.
After the jury retired, the court asked if there were any objections

and counsel for Sayes responded, “I would just object to the court’s

emphasis on the last part as going beyond the written instruction,

about finding that if a person did an act. That would be my

objection.” On appeal, Sayes argues that the placement of the “bad

purpose” or “evil motive” language in the middle of the charge and the

“intended to do an act” language at the end unfairly emphasized that

portion of the charge that was favorable to the Government.

Sayes’s vague objections to the district court did not properly

preserve the issues he now raises on appeal. With regard to the

excessive force instruction, the objection that the court did not

answer the jury’s question bears no resemblance to the argument Sayes

urges now. With regard to the willfulness instruction, the objection

gave no indication as to in what particular the challenged portion was

improper or prejudicial to Sayes. Therefore, we review these

instructions only for plain error. Caucci, 635 F.2d at 447. When

evaluating supplemental instructions to determine whether they were so

prejudicial as to impair a substantial right of the defendant, we

consider the instructions as a whole, “not word-by-word or phrase-by-

27
phrase,” and we view them in light of other instructions already

given. Carter, 491 F.2d at 633.

Sayes does not argue that the district court’s instructions

actually misstated the law, although he contends that the excessive

force instruction under-emphasized the intent element. However, the

jury later requested further instruction on “willfulness”, thus

suggesting that it had not lost sight of the intent element. As to

the challenged “He unlawfully permitted it,” remark, taken in context

the more likely understanding of it is that the court was merely

paraphrasing the indictment rather than expressing any opinion that

Sayes was guilty. Any emphasis resulting from the particular order of

phrases in the willfulness instruction appears inadvertent and was not

plainly erroneous; the instruction included an adequate statement of

the intent element and the requirement of bad purpose or evil motive.

While we do not condone or recommend the particular portions of

the supplemental instructions which Sayes challenges, we conclude that

he has not demonstrated that the supplemental instructions constituted

plain error warranting reversal under the demanding test of United

States v. Olano, 113 S.Ct. 1770 (1993). To meet that test the

instruction must not only be erroneous but clearly so, and, in

addition, the defendant bears the burden of persuading us that the

error was prejudicial rather than the government having any burden to

persuade us that it was not. Id. at 1777, 1778. Finally, even if all

these requirements are met, this court must further determine that the

28
error “‘seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings’ before it may exercise its

discretion to” reverse the conviction. Johnson v. United States, 117

S.Ct. 1544, 1550 (1997). We are unable to conclude that the

complained of portions of the supplemental instructions, properly

considered in light of the entirety of each respective set of

supplemental instructions as well as against the background of the

original charge, constituted not only error but error which was

clearly or plainly such. In any event, Sayes has not persuaded us

that any such error was prejudicial, and we likewise do not find that

any such error seriously affects the fairness, integrity or public

reputation of judicial proceedings. We accordingly hold that Sayes’s

complaints of the supplemental jury instructions present no reversible

error.

Conclusions

For the foregoing reasons, we conclude that appellants’

respective complaints on appeal present no reversible error in the

proceedings below. The convictions and sentences of defendants

Daniels, Swan, and Sayes are AFFIRMED.

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