08-4131-cr (CON)
U.S. v. Perez, et al.



                               UNITED STATES COURT OF APPEALS

                                   FOR THE SECOND CIRCUIT

                                      August Term 2008

Heard: April 27, 2009                                       Decided: August 3, 2009

                        Docket Nos. 08-4131-cr (CON),08-4905-cr (CON)
                                       08-4924-cr (CON)

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UNITED STATES OF AMERICA,
          Appellee,

                         v.

ANGEL PEREZ, GLEN CUMMINGS, and
ELIZABETH TORRES,
          Defendants-Appellants.
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Before: NEWMAN, POOLER, and PARKER, Circuit Judges.

          Appeal from the August 20, 2008, and October 6, 2008, judgments

of the United States District Court for the Eastern District of New

York (Carol B. Amon, District Judge), convicting Defendants-Appellants

of various offenses, including obstruction of justice, in violation of

18 U.S.C. § 1512.             Their convictions arise out of an episode involving

use of force by former corrections officers against a prisoner at the

Metropolitan Detention Center in Brooklyn, New York.                The Appellants

allege primarily that the evidence was insufficient to establish that

their obstruction occurred in the course of an “official proceeding”

within the meaning of section 1512.

          Judgments affirmed.
                                 Edward S. Zas, Federal Defenders of New
                                   York, Inc., Appeals Bureau, New York,
                                   N.Y., for Defendant-Appellant Perez.

                                 Joseph J. Ferrante, Hauppauge, N.Y., for
                                   Defendant-Appellant Cummings.

                                 Allan Laurence Brenner, Long Beach, N.Y.,
                                   for Defendant-Appellant Torres.

                                 Sarah Coyne, Asst. U.S. Atty., Brooklyn,
                                   N.Y. (Benton J. Campbell, U.S. Atty.,
                                   David C. James, Robert M. Radick,
                                   Justin D. Lerer, Asst. U.S. Attys.,
                                   Brooklyn, N.Y., on the brief), for
                                   Appellee.

JON O. NEWMAN, Circuit Judge.

     This   appeal   from    criminal         convictions     of   three     federal

corrections officers primarily concerns interpretation of the phrase

“official   proceeding”     as   used    in     18   U.S.C.   §    1512    punishing

obstruction of justice. The principal issue is whether the procedures

employed by the Federal Bureau of Prisons (“BOP”) to investigate

incidents involving use of force by BOP staff upon prisoners and to

determine adherence to BOP policy constitute an “official proceeding”

within the meaning of section 1512.           This issue arises on an appeal by

Angel Perez, Glen Cummings, and Elizabeth Torres from the August 20,

2008, and October 6, 2008, judgments of the United States District

Court for the Eastern District of New York (Carol B. Amon, District

Judge), convicting them, after a jury trial, of various offenses




                                        -2-
including obstruction of justice in violation of 18 U.S.C. § 1512.1

The Defendants challenge the sufficiency of the evidence to support

the “official proceeding” element of subsection 1512(c)(2).                     We

conclude that the procedures of the BOP qualify as an “official

proceeding” for purposes of section 1512 and that the evidence of

these procedures was sufficient, and we therefore affirm.

                                      Background

     The three Defendants are all former corrections officers at the

Metropolitan Detention Center (“MDC”) in Brooklyn, New York.                  They

were convicted on charges relating to their roles in the April 11,

2006, assault on MDC inmate Kenneth Howard and the cover-up of that

beating.

     The jury was entitled to find the following facts.               On April 11,

2006,        Perez,   Torres,   and   Cummings,    along   with   other   officers,

responded to a body alarm activated by a corrections officer who was

injured in an altercation with inmate Howard. The responding officers

put Howard in handcuffs and transported him from his unit to the MDC’s

Special Housing Unit (“SHU”).           As Howard was being escorted into the


        1
            The appeal of Salvatore Lopresti, who was indicted for an

unrelated episode in the same indictment that charged Perez, Cummings,

and Torres, and who was convicted in a separate trial, is disposed of

by a summary order filed this date. See United States v. Lopresti, No.

08-3787.
                                         -3-
elevator, Corrections Officer Jamie Toro tripped him and threw him

face down to the floor of the elevator.               While Howard was down,

Cummings stomped on his back, shoulders, and neck, while Perez and

Torres watched.     Then Torres intervened, pushed Cummings off of

Howard, and told everyone to move away from the elevator.             After order

was eventually restored, Howard, who suffered several lacerations and

bruises, was transported to the SHU.

     The BOP conducts an investigation after every use of force by a

staff member on an inmate at the MDC.             See U.S. Dep’t of Justice,

Federal Bureau of Prisons, “Program Statement,” No. P5566.06 “Use of

Force and Application of Restraints” (Nov. 30, 2005) (“BOP Use of

Force   Program   Statement”).    The        investigation   starts    with    the

preparation of a “Use of Force Report.” Id. ¶ 14(a).           At the MDC, this

report is usually prepared by an MDC lieutenant and compiled with the

relevant portion of the lieutenant’s log, a “use of force memorandum”

written by each corrections officer involved in the incident, and

background   information   on    the    inmate.      Once    the   paperwork    is

completed, the Use of Force Report and other materials are forwarded

to an After-Action Review Committee, composed of the Warden, the

Associate Warden (responsible for correctional services), the Health

Services Administrator, and a captain. See id. ¶ 15. The After-Action

Review Committee is required to “determine if policy was adhered [to]”

and complete an “After-Action Report” indicating its “findings,” see

                                       -4-
id., and “decide if the matter requires further investigation,” see

id.    ¶   15(c).     The   Warden   may    refer   the   matter   for    further

investigation to the Department of Justice’s Office of Inspector

General (“DOJ/OIG”), the BOP’s Office of Internal Affairs, or the

Federal Bureau of Investigation. See id.

       The jury was entitled to find that Perez and Cummings gave false

accounts of the incident in their use of force memoranda, and that

Torres did so in her use of force memorandum as well as the Use of

Force Report.        Specifically, these Defendants falsely stated that

Howard had become combative outside the elevator and “was placed on

the ground” by the officers.          After videotape of the incident was

recovered, the matter was referred to the DOJ/OIG for investigation.

That investigation, in turn, ripened into this criminal proceeding.

       Cummings, Torres, and Perez were convicted on a count charging

that   they   “did   knowingly,    intentionally    and   corruptly      obstruct,

influence and impede, and attempt to obstruct, influence and impede,

an official proceeding, to wit: a BOP investigation into the use of

force against John Doe at the MDC on April 11, 2006,” in violation of

18 U.S.C. § 1512(c)(2).           Cummings was also convicted on a count

charging him with depriving another of civil rights in violation of 18

U.S.C. § 241, but does not challenge this conviction on appeal.

       The sentences include prison terms of 36 months for Cummings, 15




                                      -5-
months for Torres, and 9 months for Perez, plus three years of

supervised release for all three Defendants.



                              Discussion

I. Scope and Standards of Review

     Sufficiency of evidence.       The Government contends that the

Defendants’ challenge to the sufficiency of the evidence is not

available for review because it should be viewed as a claim alleging

a defect in the indictment under Rule 12(b)(3)(B) of the Federal Rules

of Criminal Procedure, which is waived if not asserted in a motion to

dismiss the indictment before trial.       According to the Government,

“[t]he crux of [the Defendants’] argument is that the conduct alleged

in Count Three was improperly charged as the obstruction of an

‘official proceeding’ under § 1512 and should instead have been

charged as the obstruction of an ‘investigation’ under § 1519.”

     The   Defendants,   however,   had   no   basis   to   challenge   the

sufficiency of the indictment before trial because it met the basic

pleading requirements and was valid on its face.       The defect of which

the Defendants complain is the sufficiency of the Government’s proof

of the elements of the offense it chose to charge in the indictment.

As we have stated, “Unless the government has made what can fairly be

described as a full proffer of the evidence it intends to present at

trial . . . the sufficiency of the evidence is not appropriately

                                    -6-
addressed on a pretrial motion to dismiss an indictment.” United

States v. Alfonso, 143 F.3d 772, 776-77 (2d Cir. 1998).

     The Government also argues that because the outcome of this

appeal hinges in part on a question of law concerning the meaning of

the statutory term “official proceeding,” the appeal does not really

concern the sufficiency of the evidence.             But as Perez correctly

responds, “A challenge to the sufficiency of the evidence always

requires   a   court   to   compare   the    Government’s   proof   against   the

statutory elements, properly understood.”           It is not unusual for a

court to review sufficiency challenges that turn on the meaning of a

statutory term. See, e.g., Cuellar v. United States, 128 S. Ct. 1994,

2002-03 (2008) (concluding that evidence that petitioner concealed

money during transportation was insufficient to sustain his conviction

under the federal money laundering statute, because the language of

the statute cannot be satisfied by “merely hiding funds”); Bailey v.

United States, 516 U.S. 137, 142-43, 150-51 (1995) (holding that the

evidence was insufficient to support the defendant’s convictions for

using a firearm in violation of 18 U.S.C. § 924(c)(1) only because the

word “use,” properly construed, did not embrace mere possession of a

firearm, but rather required “active employment” of a weapon).

     As to the standard of review, the Government argues that even if

the Court chooses to review the Defendants’ sufficiency challenge, the

claim is subject only to plain error, rather than de novo, review

                                       -7-
because it was not properly preserved in the District Court. However,

since we conclude below that the sufficiency challenge is without

merit even under de novo review, we need not resolve the dispute as to

the applicable standard of review.

     Jury charge. The parties agree that we should review the claimed

error in the jury charge under plain error review because none of the

Defendants preserved the error below.

II. Sufficiency of Evidence as to “Official Proceeding”

     The Defendants’ sufficiency challenge turns on the meaning of the

phrase “official proceeding” in section 1512(c).      This provision,

which was enacted as part of the Sarbanes-Oxley Act of 2002, Pub. L.

No. 107-204, § 1102, 116 Stat. 745, 807 (2002), provides:

     (c) Whoever corruptly-

          (1) alters, destroys, mutilates, or conceals a record,
     document, or other object, or attempts to do so, with the
     intent to impair the object’s integrity or availability for
     use in an official proceeding; or

          (2) otherwise obstructs, influences, or impedes any
     official proceeding, or attempts to do so,

     shall be fined under this title or imprisoned not more than
     20 years, or both.

18 U.S.C. § 1512(c) (2006).

     Congress defined the term “official proceeding” for the purposes

of sections 1512 (and 1513) as follows:

     (1) the term “official proceeding” means–


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          (A) a proceeding before a judge or court of the United
     States, a United States magistrate judge, a bankruptcy
     judge, a judge of the United States Tax Court, a special
     trial judge of the Tax Court, a judge of the United States
     Court of Federal Claims, or a Federal grand jury;

           (B) a proceeding before the Congress;

          (C) a proceeding before a Federal Government agency
     which is authorized by law; or

          (D) a proceeding involving the business of insurance
     whose activities affect interstate commerce before any
     insurance regulatory official or agency or any agent or
     examiner appointed by such official or agency to examine the
     affairs of any person engaged in the business of insurance
     whose activities affect interstate commerce[.]

18 U.S.C. § 1515(a)(1).

     Thus, our issue becomes whether the Defendants’ false statements

occurred in “a proceeding before a Federal Government agency which is

authorized by law.”          The Defendants do not dispute that the BOP

procedures required in the aftermath of every use of force by BOP

staff   upon   an   inmate   are   “authorized      by   law.”   See   28   C.F.R.

§§ 0.96(o); 552.22(j), 552.27.       They contend, however, that the other

proceedings covered by subsection 1515(a)(1), particularly court and

congressional proceedings, indicate that an “official proceeding,” for

purposes of subsection 1512(c)(2), is one in which a witness is

directed to appear and testifies under oath.             The Government appears

to contend that any official investigation, or at least the type of

inquiry   required   by   the   BOP’s    Use   of   Force   Program    Statement,

satisfies the requirement of an “official proceeding.”

                                        -9-
     Several appellate decisions bear on, but do not precisely decide,

our issue.   In United States v. Gonzalez, 922 F.2d 1044 (2d Cir.

1991), a defendant, accused of killing a confidential informant of the

Drug Enforcement Administration (“DEA”), challenged his conviction

under subsection 1512(a)(1)(C) on the ground of improper venue under

18 U.S.C. § 1512(i) (formerly § 1512(h)).    Subsection 1512(a)(1)(C)

punishes use of force to prevent communication about a federal offense

to a law enforcement officer of the United States.   Unlike subsection

1512(c)(2), under which the Defendants in the pending appeal were

charged, subsection 1512(a)(1)(C) makes no reference to an “official

proceeding.” However, section 1512(i) (formerly section 1512(h)), the

venue provision for section 1512, authorized venue “in the district in

which the official proceeding . . . was intended to be affected.”   In

Gonzalez, the killing and prosecution had occurred in the Eastern

District of New York, but the DEA investigation in which the informant

was participating had occurred in the Southern District of New York.

We upheld venue, stating that “we read the term ‘official proceeding’

broadly in order to effect Congress’ purpose in passing [the Victim

and Witness Protection Act].” Id. at 1056.

     On the other hand, in United States v. Gabriel, 125 F.3d 89 (2d

Cir. 1997), abrogated on other grounds by Arthur Andersen, LLP v.

United States, 544 U.S. 696 (2005), we stated in dicta that, although

the issue had not been raised by the defendant, if the jury had

                                -10-
“concluded that [the defendant’s] sole intent was to interfere with

[an] FBI investigation,” then the jury “would have been compelled to

find [the defendant] innocent” of witness tampering under 18 U.S.C.

§ 1512(b) because a “government investigation” was not included in the

definitions      of    “official     proceeding”       contained     in     subsection

1515(a)(1). See id. at 105 n.13.

      Moreover, in United States v. Ramos, 537 F.3d 439 (5th Cir.

2008), the Fifth Circuit recently invalidated the convictions of two

Border Patrol agents for violating subsections 1512(c)(1) and (2) by

falsely covering up their misconduct in the course of a Border Patrol

internal, informal investigation.             The Fifth Circuit ruled that “an

internal informal investigation, in its most preliminary stages, of

employee      violations   of   an    agency    policy    is   not    an    ‘official

proceeding’ within the meaning of § 1512(c).” Id. at 463.

      In the pending appeal, we need not choose between the venue

ruling in Gonzalez, the dicta in Gabriel, and the holding in Ramos, or

the competing arguments the parties derive from case law interpreting

the   related     obstruction      statute,     18    U.S.C.   §    1505,    entitled

“Obstruction      of    proceedings     before       departments,     agencies    and

committees.”2      Whether or not agency investigations in general can


      2
          Section 1505 punishes the corrupt obstruction of “the due and

proper administration of the law under which any pending proceeding is

being had before any department or agency of the United States.” 18
                                -11-
satisfy the “official proceeding” element of subsection 1512(c)(1), we

conclude that the particular procedures required by the BOP’s Use of

Force Program Statement suffice to support a conviction under that

subsection.       The    Program    Statement,        which    was    in   evidence,

contemplates more than a preliminary investigation; it sets forth a

detailed process of review and decision-making.               After a Use of Force

Report is prepared, a review panel of senior officials, including the

Warden   and   the   Associate     Warden,     is   convened    and   required   “to

determine if policy was adhered [to], and complete the standard After-

Action Report (BP-E586), indicating the nature of the review and

findings.” BOP Use of Force Program Statement ¶ 15 (emphases added).

The   panel    “should   also    decide   if    the   matter    requires    further

investigation,” id. ¶15(c) (emphasis added), in which event the matter

may be referred for higher level review.

      Because the review panel must “determine” if there has been a

violation of BOP policy, must make “findings,” and may “decide” to

refer the matter to senior departmental authorities, its work is

sufficiently formal to satisfy the “official proceeding” element of

subsection 1512(c)(1).          Obstructing the work of a body of senior

officials, charged with such quasi-adjudicative responsibilities, fits

comfortably within the category of conduct proscribed by section 1512.

For purposes of section 1512, “an official proceeding need not be


U.S.C. § 1505.
                                      -12-
pending or about to be instituted at the time of the offense,” 18

U.S.C. § 1512(f), and the BOP proceedings that were required to be

instituted in every instance of use of force on a prisoner were

foreseeable    at   the   time   of    the    Defendants’     obstruction.     The

Defendants’ challenge to the sufficiency of the evidence was properly

rejected.

III. Jury Instruction on “Official Proceeding”

     The Defendants contend that even if the evidence sufficed to

support their convictions, a new trial would still be required because

the jury instructions were erroneous.           They acknowledge, that, in the

absence   of   an   objection,   our    review    is   only    for   plain   error.

“[B]efore an appellate court can correct error not raised at trial,

there must be (1) error, (2) that is plain, and (3) that affect[s]

substantial rights.       If all three conditions are met, an appellate

court may then exercise its discretion to notice a forfeited error,

but only if (4) the error seriously affect[s] the fairness, integrity,

or public reputation of judicial proceedings.” United States v.

Thomas, 274 F.3d 655, 667 (2d Cir. 2001) (in banc) (citations and

internal quotation marks omitted) (alterations in original).

     In its charge to the jury the district court defined the term

“proceeding” as follows:

     The term “proceeding” is defined broadly to include all of
     the steps and stages in the performance by a government
     agency   of   its   government  functions.   It   includes
     investigations as well as other administrative functions,
                                       -13-
     like adjudications. The modifier “official” merely means
     that the steps and stages constituting the proceeding are
     taken in the course of conducting business that the agency
     is legally authorized to conduct.

Although this portion of the charge may well have been too expansive,

any error cannot be considered “plain” in view of the language this

Court used in Gonzalez.   Although we have declined to regard that

language as dispositive of this appeal, it understandably pointed the

District Court toward the formulation included in the jury charge.

Under “plain error” review, the jury instruction does not require a

new trial.

                             Conclusion

     The judgments are affirmed.




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