US v. Bailey, No. 03-2632, affirms the convictions of “one of seven jailers charged with federal offenses... where guards employed excessive force against pretrial detainees and then acted to conceal their misconduct.” There were challenges to the jury instructions, the verdict, and the defendant argued that beating a prisoner isn't really hurting a vulnerable person, even if he is crying. Because this guard worked for the state, and was not harming people with "intelligence" the federal government decided that the guard was a felon and not a hero, and should spend the next three years in jail.
The court holds that obstruction of justice under 18 U.S.C. § 1512(b)(3) does not require that there be an immanent investigation or proceeding, but because the court is a little scared about creating an ex post facto issue, acknowledges that “the statute applies only to obstructive behavior that the defendant knows could impede an investigation into conduct that could constitute a federal crime at the time of its commission.” The court also found no plain error in a jury instruction which appears to have extraneously added in some “failure to act” language, when the government was proceeding on a principal or “abettor” theory under 18 U.S.C. § 241.
Also rejected were the defendants “spillover theory” that the trial (which he failed to move to sever) was tainted by the fact that much of it involved the other defendants. But, again, plain error.
As to sentencing the court found that U.S.S.G. § 3A1.1(b)(1) (vulnerable victim) properly was applied, because “...the victim was on suicide watch, was deemed a threat to himself or others, was stripped of his clothes, was cold, and was not allowed out of his cell even to get food.”
Oh, but here is the good part. Because 18 U.S.C. § 241 requires some showing of bodily injury, the defendant argued that a showing that the victim “cried” was not enough. I wonder how Judge Bybee would analyze this argument ?