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United States v. McCoy

United States District Court, D. Arizona

January 24, 2019

United States of America, Plaintiff,
v.
Darrell E. McCoy, Defendant.

          ORDER

          Douglas L. Rayes United States District Judge

         Before the Court is Defendant Darrell E. McCoy's post-trial motion. (Doc. 122.) Defendant's post-trial motion is styled as a motion for judgment notwithstanding the verdict, a motion to vacate the judgment, and a motion to dismiss multiplicitous counts. (Id.) The motion is fully briefed. For the reasons stated below, Defendant's motion is denied.

         I. Background

         In 2016, Defendant, a seventeen-year correctional officer at the Federal Correctional Institution (“FCI”) in Phoenix, Arizona, was responsible for overseeing inmate work crews. Defendant's crews were responsible for the prison's repairs, maintenance and landscaping. Because of staffing shortages, Defendant found himself working alone with the female inmates, managing two shops with little oversight or assistance from other correctional officers.

         In approximately September 2016, an inmate under his supervision, S.S., the “lead” inmate with whom he had regular daily contact, unexpectedly hugged Defendant from behind. Rather than treat it as a disciplinary violation, as he admittedly should have, Defendant became romantically involved. According to Defendant:

I just got emotionally attached. And it was kind of a romantic, um, fantasy. Um, I swear I had no intentions on it going any farther than that. And with each time something would happen, I would realize that if I were to stop it now, she may get upset and, you know, turn me in.

(Doc. 131-1 at 9.)

         During the next two to three months, while Defendant and S.S. continued working together they often hugged and kissed.[1] Defendant, knew that sexual contact by a correctional officer with an inmate is illegal and claims that he tried to avoid it. However, S.S. attempted to take the relationship further than just hugging and kissing. She began touching Defendant and caused Defendant to touch her, by grabbing his hand and placing it on her body in areas that are defined by statute as sexual contact. At trial, S.S. testified that Defendant told her to stop and that he pulled away because “he [didn't] want to get in trouble, ” but she did not stop, testifying, “I guess you can say I like a challenge.” (Doc. 117 at 54.)

         Defendant was charged by way of a superseding indictment with five counts of abusive sexual contact of a ward in violation of 18 U.S.C. §§ 2244(a)(4) and 2246. (Doc. 48.) The superseding indictment alleged that “on or about September 29, 2016, through December 15, 2016, ” Defendant had sexual contact with a female inmate in his custodial authority in five locations in FCI. (Id.) The superseding indictment identified a location for each count as follows:

Count

Location

1

Within a vehicle on FCI-Phoenix

2

In or near garage on FCI-Phoenix

3

In or near maintenance building (a/k/a workshop) on FCI-Phoenix

4

In or near office within maintenance building (a/k/da workshop) on FCI- Phoenix

5

In or near area refered to as "bone yard" on FCI-Phoenix

         Count Location 1 Within a vehicle on FCI-Phoenix 2 In or near garage on FCI-Phoenix 3 In or near maintenance building (a/k/a workshop) on FCI-Phoenix 4 In or near office within maintenance building (a/k/da workshop) on FCI- Phoenix 5 In or near area refered to as "bone yard" on FCI-Phoenix

         Following a three-day trial, the Court granted Defendant's motion for judgment of acquittal under Federal Rule of Criminal Procedure Rule 29 as to Count 2, and dismissed Count 4, finding it multiplicitous.[2] (Doc. 100.) The jury deliberated on Counts 1, 3 and 5, and found Defendant guilty of Counts 1 and 3 and not guilty of Count 5.

         II. Motion for Judgment of Acquittal

         A. Legal Standard

         Defendant's motion for judgment of acquittal was brought pursuant Rule 29(c)(1). A challenge to the sufficiency of the evidence under Rule 29(c) requires the court to view the evidence in the light most favorable to the prosecution and ask if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Hursh, 217 F.3d 761, 767 (9th Cir. 2000). “[E]vidence is insufficient to support a verdict where mere speculation, rather than reasonable inference supports the government's case, or where there is a total failure of proof of a requisite element.” United States v. Katakis, 800 F.3d 1017, 1023 (9th Cir. 2015) (internal quotation and citation omitted). The government is not required to rebut all reasonable interpretations of the evidence that would point to the defendant's innocence or rule out every hypothesis except guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 326 (1979).

         B. Discussion

         The crime of abusive sexual contact of a ward requires proof of, among other things, sexual contact. Sexual contact is defined as “the intentional touching . . . of the genitalia, breast, inner thigh, or buttocks of an person with the intention to . . . arouse or gratify sexual desire of any person.” 18 U.S.C. § 2246(3) (emphasis added).

         Defendant does not dispute the existence of an inappropriate relationship with the victim, an inmate. Nor does he dispute the evidence of touching, much of which occurred in locations other than the locations identified in Counts 1 and 3 of the superseding indictment. For purposes of this motion, however, it is only evidence of touching that occurred in the locations identified in Counts 1 and 3 that are at issue.

         1. Count 1: Sexual Contact Within the Vehicle

         Defendant argues that the evidence does not establish that: (1) the touching in the vehicle was of a statutory body part; (2) Defendant intended the touching to occur; and (3) the touching was done with the intent to arouse or gratify sexual desire of any person. (Doc. 122 at 9-10.) Specifically, Defendant argues that S.S. initiated the contact and Defendant immediately pulled his hand away, and there is no evidence establishing that when Defendant touched S.S.'s thigh that it was her inner thigh. (Id.)

         Although Defendant's statement and S.S.'s testimony differed slightly, they were generally consistent. That is, both stated that while in the truck S.S. pulled Defendant's hand to her crotch area and he pulled it away. S.S. testified that it occurred on only one occasion, and that she put the Defendant's hand on her thigh “[c]loser to my, um, pubic area.” (Doc. 117 at 51-52.) Whereas Defendant indicated in his statement to investigators that S.S. pulled his hand to her crotch area 2-3 times. (Doc. 131-1 at 44.) Defendant also stated, “I would squeeze the thigh and pull away because we're driving and someone's going to see.” (Id. at 42.)

         In addition to the direct evidence, the testimony of S.S. and Defendant's statement, the prosecution introduced circumstantial evidence of Defendant's intent. For instance, the repetitive nature of the touching; Defendant's note to S.S. describing romantic sexual activity; text message exchanges for a four-month period after ...


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