           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        November 13, 2008

                                       No. 07-60897                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

RYAN MICHAEL TEEL

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:06-CR-79-1


Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Ryan Michael Teel, a former booking officer at the
Harrison County Adult Detention Center in Harrison County, Mississippi,
appeals his convictions and sentences for (1) conspiring to deprive inmates at the
jail of their constitutional rights while acting under color of law, in violation of
18 U.S.C. § 241; and (2) willfully depriving inmate Jesse Lee Williams of his
right to be free from the use of excessive force under color of law, thereby causing




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 07-60897

his death, in violation of 18 U.S.C. § 242. For the reasons that follow, we AFFIRM.
      Teel asserts that the district court improperly concluded that he failed to
make a prima facie showing of race or gender discrimination under Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), when the Government used five
of its six peremptory challenges to strike white males from the jury pool. Teel
mischaracterizes the court’s ruling. The court actually assumed the existence
of a prima facie case of discrimination, considered the Government’s proffered
gender and race-neutral reasons for its peremptory strikes—none of which were
challenged by Teel—and found that Teel had not proven unlawful discrimination
in violation of Batson. We find no clear error. See, e.g., United States v.
Denman, 100 F.3d 399, 404-05 (5th Cir. 1996).
      Teel also challenges several evidentiary rulings by the district court,
including allowing Government witnesses to provide “legal opinions” regarding
excessive force, and permitting a Government expert, Dr. James Doty, to testify
beyond the scope of his pre-trial disclosure pursuant to Fed. R. Crim. P. 16. The
evidence supporting Teel’s conviction was overwhelming.          Teel also offers
nothing more than conclusory and speculative assertions of prejudice resulting
from Dr. Doty’s challenged testimony. We see no error, and the admission would
have been harmless in any event. See, e.g., United States v. Yanez Sosa, 513
F.3d 194, 203 n.4 (5th Cir. 2008) (assuming that Rule 16 disclosure requirements
were violated, but concluding no prejudice was shown); United States v.
Williams, 343 F.3d 423, 435 & n.11 (5th Cir. 2003) (concluding that a police
officer’s improper testimony about the reasonableness of a police shooting was
harmless in the face of “overwhelming” evidence against the defendant). We
further conclude that the district court properly barred Teel’s expert from going
beyond consideration of the conduct to offer legal conclusions regarding whether
the assault on Williams constituted excessive force. See Williams, 343 F.3d at



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435 (explaining that FED. R. EVID. 704(a) “‘does not allow a witness to give legal
conclusions’” (internal citation omitted)).
      Teel’s assertion that 18 U.S.C. § 242 is unconstitutionally vague is
unmeritorious. The facial constitutionality of § 242 was settled long ago, Screws
v. United States, 325 U.S. 91, 103-04, 65 S. Ct. 1031, 1036-37 (1945), as was the
statute’s application to the right to be free from excessive force under color of
law, see United States v. Stokes, 506 F.2d 771, 776 (5th Cir. 1975) (construing
§ 242 to encompass a due process right to be free from unreasonable,
unnecessary, or unprovoked force by state actors). In light of this precedent,
Teel cannot demonstrate that he lacked fair notice that beating a restrained
inmate to death would be unlawful under the Constitution and, hence, subject
to criminal liability under § 242. See, e.g., United States v. Lanier, 520 U.S. 259,
271-72, 117 S. Ct. 1219, 1228 (1997) (holding criminal liability under § 242 “may
be imposed for deprivation of a constitutional right if . . . ‘in the light of pre-
existing law the unlawfulness [under the Constitution is] apparent’” (internal
citation omitted)).
      Additionally, contrary to Teel’s contentions, the district court did not abuse
its discretion by refusing to instruct the jury separately on self-defense. The
instructions provided by the court regarding willfulness and excessive force
fairly and adequately encompassed Teel’s theory that he struck Williams in self-
defense. Therefore, the absence of a specific self-defense instruction did not
impair Teel’s ability to advance that defense.        See, e.g., United States v.
Simkanin, 420 F.3d 397, 411 (5th Cir. 2005).
      Nor do we find that the district court abused its discretion by unsealing an
affidavit voluntarily filed by Teel in support of a pretrial motion and making it
available to the Government for impeachment purposes. Teel’s affidavit was not
compelled testimony that implicates the Fifth Amendment, and his decision to
testify in his own defense “waive[d] his fifth amendment privilege against self-

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incrimination at least to the extent of cross-examination relevant to issues raised
by his testimony.” United States v. Beechum, 582 F.2d 898, 907 (5th Cir. 1978)
(en banc). Teel further asserts that unsealing the affidavit violated the rule
limiting cross-examination “to the subject matter of the direct examination and
matters affecting the credibility of the witness.” FED. R. EVID. 611(b). Rule
611(b), however, has no bearing on the court’s anticipatory ruling allowing the
Government to review the contents of Teel’s affidavit for potential use during
cross-examination.    Notably, too, the Government’s limited uses of Teel’s
affidavit to impeach him fell squarely within the scope of his direct testimony
regarding the use of force by fellow booking officers, in compliance with Rule
611(b).
      Finally, Teel asserts that the district court violated Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and its progeny by basing his life
sentences on the court’s own classification of the underlying offense as second
degree murder, instead of submitting that issue to the jury. Apprendi does not
apply except when those facts (other than a prior conviction) found by a judge
increase a sentence above the statutory maximum. Id. at 490, 120 S. Ct. at
2362-63; see also Cunningham v. California, 549 U.S. 270, 274-75, 127 S. Ct.
856, 860 (2007). The statutes in this case authorize a maximum punishment of
life imprisonment or the death penalty for violations resulting in death of the
victim. 18 U.S.C. §§ 241, 242. Because the jury found that Teel violated §§ 241
and 242 and that Williams died as a result, the court did not violate Apprendi
by imposing a sentence that the jury verdict alone permitted. See, e.g., Blakely
v. Washington, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 2537 (2004) (construing
Apprendi and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002), to prohibit
a judge from inflicting punishment that the jury’s verdict, standing alone, does
not allow). Additionally, as noted by the district court, United States v. Booker,
543 U.S. 220, 125 S. Ct. 738 (2005), rendered the Federal Sentencing Guidelines

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advisory only. See United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
Under Booker, it was appropriate for the district judge to make factual findings
by a preponderance of the evidence to determine the applicable Guidelines
range.   Id.   Accordingly, the district court did not violate Teel’s Sixth
Amendment right to a jury trial by imposing life sentences.
AFFIRMED.




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