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9 December 2008

http://www.usdoj.gov/opa/pr/2008/December/08-crt-1075.html

Former Grant County, Kentucky Detention Center Officers Sentenced for Civil Rights Violations in Teenager Rape Case

WASHINGTON – Wesley Lanham, 31, and Shawn Freeman, 36, both former deputy jailers at Grant County Detention Center in Kentucky, were sentenced today on federal civil rights, conspiracy and obstruction charges. Lanham was sentenced to 15 years in prison and 3 years of supervised release, and Freeman was sentenced to 14 years in prison and 3 years of supervised release. Both defendants were found guilty of conspiring to violate the civil rights of a teenaged traffic offender by arranging for him to be raped by inmates. The jury convicted the defendants on all charges and specifically found that the defendants were responsible for the aggravated sexual assault carried out by the inmates.

"Although nothing can fully heal the wounds inflicted on this teenager, hopefully the defendants’ sentences today will bring closure to this young man and his family," said Grace Chung Becker, Acting Assistant Attorney General for the Civil Rights Division. "His courage in coming forward helps to ensure that egregious acts such as this one will be appropriately punished, and facilitates the Justice Department’s efforts to ensure the integrity of law enforcement."

The case stemmed from an incident that occurred on Feb. 14, 2003, when the defendants, along with their supervisor, former Sergeant Shawn Sydnor, taunted an 18-year-old high school student who had been brought to the detention center on a speeding charge. The deputies teased the teenager about his physical appearance and told him that he would make a good "girlfriend" for the other inmates. The defendants then solicited a group of convicted felons housed in a general population cell to scare and "mess with" the teenager. After eliciting an agreement from the inmates, the officers left the teenager in the cell where he was sexually assaulted by the other inmates.

When the teenager’s father reported the incident and demanded an investigation, the defendants falsified their official reports relating to the treatment of the teenager.

A third defendant, former Sergeant at the jail, Clint Shawn Sydnor, previously pleaded guilty to civil rights and conspiracy charges and was sentenced earlier today to 90 months in prison.

This case was prosecuted by Special Litigation Counsel Kristy L. Parker and Trial Attorney Forrest Christian of the Criminal Section of the Justice Department’s Civil Rights Division, with assistance from the U.S. Attorney’s Office for the Eastern District of Kentucky. The case was investigated by the Federal Bureau of Investigation.


15 August 2008

Grant County Detention Center: http://grantcounty.ky.gov/departments_agencies/detention_center.htm
Welcome

I am Steven L. Kellam, elected jailer of the Grant County Detention Center. I have served as jailer of the facility since August 15, 2001 and am proud of the services that we provide our community. This site can provide you with basic information such as Administrative Staff List, directions to the facility, mail regulations, booking and housing fees information, canteen information, current programs at the facility, information about Community Service Programs and Links to our favorite sites.

The Grant County Detention Center is a 350 Class D Regional Facility that houses County, State and Federal Inmates. Renovation from the 28 bed facility to 300 beds was completed in May of 2000 and an additional 50 plus beds were added in mid 2007. We strive to provide a safe and secure environment with the constitutional level of care for inmates. Any assistance our staff can be to you please feel free to contact us. Thank you again for your continued support.

http://www.usdoj.gov/crt/split/documents/grant_county_findlet_5-18-05.pdf

DoJ report in 2005 on violence and mismangement at Grant County Detention Center:
Based on our investigation, and as described in more detail, below, we conclude that certain conditions at the facility appear to violate the constitutional rights of the inmates confined there. Our inquiry suggests that person confined at GCDC often receive inadequate protection from physical harm by other inmates, and experience deliberate indifference toward their serious medial needs.

http://www.lawyersandsettlements.com/settlements/04276/inmate_rape.html

Grant County Detention Center

On February 13, 2003, an 18 year old was stopped by police in Pendleton County for a traffic violation; he fled and eluded officers, prompting his detention in the jail. The victim was placed in a general population cell which was temporarily housing Pendleton's prisoners, including felons. The 125 pound victim was stripped and carried to a shower area where he was raped multiple times. Three inmates were convicted for their involvement in the attack and received 5 to 15 year sentences. Grant County Detention Center has agreed to pay the boy a $1.4 million personal injury and negligence settlement. (Sep-12-05) [KENTUCKY POST]


http://www.usdoj.gov/opa/pr/2008/August/08-ag-727.html

Former Grant County, Kentucky, Detention Center Officers Found Guilty of Civil Rights Violations in Teenager Rape Case

WASHINGTON – A Kentucky jury convicted Wesley Lanha and Shawn Freeman, both former deputy jailers, on federal civil rights, conspiracy, and obstruction charges, the Justice Department announced today. The defendants, former deputies at the Grant County Detention Center were found guilty of conspiring to violate the civil rights of a teenage traffic offender when they arranged for him to be raped by inmates. The jury convicted the defendants on all charges and specifically found that the defendants were responsible for the aggravated sexual assault carried out by the inmates.

The defendants face up to life in prison when they are sentenced on December 8, 2008.

The case stemmed from an incident that occurred on Valentine’s Day in 2003, when the defendants, along with their supervisor, former Sergeant Shawn Sydnor, taunted an 18-year-old high school student who had been brought to the detention center on a speeding charge. The deputies teased the teenager about his physical appearance and told him that he would make a good "girlfriend" for the other inmates. The defendants then solicited a group of convicted felons housed in a general population cell to scare and "mess with" the teenager. After eliciting an agreement from the inmates, the officers left the teenager in the cell where he was sexually assaulted by the other inmates.

When the teenager’s father reported the incident and demanded an investigation, the defendants falsified their official reports relating to the treatment of the teenager.

Sydnor, previously pleaded guilty to civil rights and conspiracy charges and faces up to 15 years in prison.

This case was prosecuted by Special Litigation Counsel Kristy L. Parker and Trial Attorney Forrest Christian of the Criminal Section of the Justice Department’s Civil Rights Division, with assistance from the U.S. Attorney’s Office for the Eastern District of Kentucky. The case was investigated by the Federal Bureau of Investigation.

###


[The victim, JS, is identified in the trial witness list.]

US Attorney Trial Brief

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
COVINGTON DIVISION

UNITED STATES OF AMERICA

v.

CLINTON SHAWN SYDNOR
WESLEY LANHAM, and
SHAWN FREEMAN
)
)
)
)
)
)
)
)
JUDGE DANNY C. REEVES

CASE NO. 2:08cr00005 DCR

TRIAL BRIEF OF THE UNITED STATES

The United States of America, by and through the United States Attorney for the Eastern
District of Kentucky and the undersigned Department of Justice attorneys, hereby submits this
trial brief for the Court’s assistance in the trial of this matter, which is scheduled to begin August
11, 2008.

I. The Indictment

The Indictment in this case charges former Grant County Deputy Jailers Clinton Shawn
Sydnor, Wesley Lanham, and Shawn Freeman, all of whom were employed by the Grant County
Detention Center (“GCDC”), with multiple offenses related to the aggravated sexual assault of
JS, an alleged traffic offender who was in the custody of the GCDC on February 13-14, 2003,
and the subsequent cover-up of the defendants’ role in the assault.

Count One of the Indictment charges the defendants with conspiring with each other and
with inmates at the jail to deprive a teenaged arrestee of his due process rights, in violation of 18
U.S.C. § 241, by agreeing to leave him in Cell 101, which housed dangerous inmates, after first
telling the inmates that they were bringing a young boy to their cell, and then inciting those
inmates to “fuck with” him. The overt acts in Count One allege that Defendants Lanahm and
Freeman specifically solicited the inmates to scare the teenager and teach him a lesson.
Defendant Sydnor then locked the teenager in the cell, after hearing the inmates shout, “He’s
such a cutie,” “Bring him to me,” and “Happy Valentine’s Day!” After the defendants left JS in
the cell, inmate co-conspirators housed there raped JS and forced him to perform oral sex on
another inmate. The indictment alleges that by agreeing with each other and the unindicted
inmates to place the teenager in that cell for the purpose of scaring him and teaching him a
lesson, the defendants conspired to deprive him of the right, guaranteed by the Due Process
Clause, to be free from extra-judicial punishment meted out by correctional officers. Count One
also alleges that acts committed in furtherance of the conspiracy included the aggravated sexual
assault of the teenager.

Count Two charges the defendants with a violation of 18 U.S.C. § 242 for the substantive
offense of depriving the teenager of his civil rights. Specifically, the indictment alleges that the
defendants, while aiding and abetting one another, locked the teenager in Cell 101 at the jail,
knowing that there was a substantial risk that the inmates in the cell would physically assault and
harm the teenager.

Counts Three, Five, and Six charge the defendants with violating 18 U.S.C. § 1519 by
writing false reports concerning their respective roles in placing the teenager into the general
population cell in which he was sexually assaulted. Count Four charges defendant Sydnor with
an additional violation of 18 U.S.C. § 1519 for creating a false shift log for the night of the
attack, and Count Seven charges him with obstruction of justice, in violation of 18 U.S.C.
§ 1512(b)(3), for corruptly persuading another GCDC employee to make false statements about
the events that led up to the assault.

II. The Evidence

At trial, the government expects to prove at least the following facts, many of which have
already been admitted under oath by defendants Syndor and Lanham:

A. The Conspiracy and Rape

Late on the night of February 13, 2003, JS, a slight 18-year-old high school sophomore,
was arrested for traffic violations and taken to the GCDC. At the jail, a group of correctional
officers, including all three defendants, gathered outside the GCDC’s booking area and mocked
JS for having highlighted blond hair and for wearing silk boxers with hearts on them. The
defendants also joked that JS would “make a good girlfriend” for the other GCDC inmates.
While another officer was booking JS into the facility, Defendant Sydnor, a sergeant who was
also the shift supervisor that night, suggested “teaching [JS] a lesson” by locking him for the
night in an isolated cell that housed 14 convicted felons. The other defendants agreed, even
though they were all aware that, per jail policy, JS should have been kept in a “detox cell,” in the
intake area of the jail, safely away from convicted prisoners.

After agreeing that JS should be scared, defendant Lanham told Sydnor and Freeman that
he knew of an inmate the defendants could enlist in their plan to scare JS. Defendant Sydnor
agreed that Lanham should go enlist the aid of that inmate, after which defendants Lanham and
Freeman then carried out the agreement by walking down hallway 26 to Cell 101 and speaking
to Inmate Bobby Wright, whom they told, in the presence of other inmates, that the officers were
going to bring a first-time offender to the cell so that Wright could “scare” and “fuck with” the
boy. As Lanham and Freeman delivered this message, numerous inmates in the cell began to
“whoop and holler” in anticipation of the boy’s arrival.

Back in intake, defendant Sydnor informed Officer Jack Powell that JS would be housed,
contrary to policy, in Cell 101. Defendant Sydnor and Officer Powell then escorted JS down
hallway 26 to Cell 101. As Sydnor and Powell did so, inmates crowded up against the cell doors
to await JS’s arrival and shouted sexually-charged remarks at JS and the officers. One inmate
yelled, “Happy Valentine’s Day!” Someone yelled, “Come in here, girlfriend!” And someone
yelled, “Bring him to me!” As JS trembled in obvious fear, Defendant Sydnor opened the cell
door and pushed him inside. The last thing JS said before being locked in the cell with the
convicted inmates was, “Oh, God.” Defendant Sydnor then turned around and walked away,
leaving JS locked in the cell.

Almost immediately after Defendant Sydnor and Officer Powell left the hallway, inmates
inside Cell 101 surrounded JS, stripped him naked, beat him with their shoes, and dragged him
into the shower. In the shower area, convicted felon Victor Zipp, an inmate Defendant Sydnor
knew was the “ring leader” of Cell 101, and who often walked around the cell in the nude, anally
raped JS. Inmates then dragged JS back into the main cell, where they placed his bare buttocks
in the window so other inmates in the hallway would be able to see him. After JS was placed
back down on his feet, Zipp demanded that JS perform oral sex on him. When JS refused,
inmate Bobby Castillo hit JS in the back of the head and forced his head down onto Zipp’s penis.

Several hours later, JS was removed from Cell 101 by an officer working the First Shift,
at which time JS told the officer that he had been sexually assaulted.

B. The Cover-Up

The morning after JS’s arrest, his father reported to the GCDC to pick up his son and
found JS waiting alone in the lobby. On the way home from the jail, JS cried and told his father
what had happened the night before. Mr. S spun his car around and returned to the jail, where he
demanded that GCDC officials report the sexual assault of his son to the police. Later that day,
the Kentucky State Police (“KSP”) initiated a criminal investigation. Almost immediately upon
learning of the criminal investigation, Defendant Sydnor began pressuring other members of the
night shift to “tell the same story” about the incident involving JS.

Defendant Sydnor also specifically threatened WG, a deputy jailer under Sydnor’s
supervision, with reprisals if she failed to go along with the defendants’ efforts to conceal their
actions with respect to JS. WG had been on duty the previous evening when JS was arrested,
and had overheard Defendant Sydnor and others talking about putting JS in a cell with convicted
inmates. When WG heard the plan, she spoke up and told defendant Sydnor that it was
dangerous to put young JS in a cell with violent inmates. Defendant Sydnor turned to WG and
snapped at her, “I am the sergeant. I wear the stripes,” informing her that the decision to house
JS in hallway 26 was final. After defendant Sydnor ignored WG’s pleas and took JS to Cell 101,
WG had a stress-related seizure and went home for the night.

The next day, after the KSP investigation began, defendant Sydnor approached WG and
demanded that she go along with the cover story that he and the other officers involved in
housing JS were in the process of concocting. This obstructive conduct forms the basis for
Count Seven in the indictment.

At around the same time, defendants Sydnor, Lanham, and Freeman wrote false and
misleading official reports about their reasons for placing JS in the cell and about the defendants’
role in enlisting inmates in that cell to scare JS and teach him a lesson. To justify their actions,
the defendants came up with the false story that there had been a malfunctioning drain in the
Detox cell in which JS was originally housed, and that because of this drain problem, JS had to
be moved to another cell. Defendants Lanham and Freeman, who had been assigned to a
different part of the jail on the night of the incident, also offered false justifications to explain
why they had ever been to the Cell 101 hallway in the first place. Defendant Lanham claimed
that he had gone to Cell 101 to talk to inmate Bobby Wright about returning to a different part of
the jail, and defendant Freeman claimed that he and Lanham had gone to the hallway to do a
“secure check” for defendant Sydnor. Finally, Defendant Sydnor fabricated a shift log for the
night of February 13-14.

As the defendants had planned, all of these false documents were provided to KSP and
became part of the investigative record. These false documents form the basis for the charges set
forth in Counts Three through Six of the Indictment.

C.

The Substantive Civil Rights Violation – Deliberate Indifference to a Known
Danger

In addition to proving that the defendants and inmates specifically agreed to scare JS, the
government will prove that the defendants deliberately ignored the virtual certainty that inmates
in Cell 101 would physically harm JS.

On the night of February 14, 2003, JS was a five-foot-eight-inch 18-year-old high school
sophomore with no criminal record and no experience being incarcerated. JS weighed in at 120
pounds on the night he was arrested for speeding and eluding the police. When he arrived at the
GCDC, he was visibly shaken and scared by the prospect of spending the night in jail. Several
deputy jailers will testify that, regardless of any GCDC policy for housing arrestees in the
booking area rather than general population, JS’s youth, inexperience, and physical
characteristics were enough in and of themselves to make it clear that JS would be in physical
danger if he were housed in any general population cell with other inmates.

According to multiple GCDC employees, however, Cell 101 was not just any cell; it was
a particularly dangerous cell on a particularly dangerous hallway in the jail. Hallway 26, where
Cell 101 was located, was isolated at the farthest point from the main area of the jail and from
the view of deputy jailers. Deputy jailers could only supervise the inmates on that hallway by
physically walking there, which they were required to do, at most, once per hour. Most of the
inmates housed in Cell 101 on February 14, 2003, were convicted felons. In addition, Hallway
26, nicknamed “the Hallway from Hell” by one deputy jailer, was known to be a home to
frequent gang activity and violence. Indeed, earlier in the evening of February 13, 2003, night
shift deputies, including defendants Sydnor and Freeman, had removed a convicted child
molester from Cell 102 because he had been threatened and beaten by inmates in that cell. One
deputy jailer will testify that the incident involving the child molester had clearly “riled up” the
inmates in that part of the jail immediately prior to the time that JS was housed there.

The government will also prove that there was no legitimate purpose for the defendants
to house JS in Cell 101, or anywhere else other than the detox cell where he belonged. Multiple
witnesses will testify that GCDC personnel were trained and otherwise informed that they had a
duty to protect detainees, and that they were not permitted to punish or “scare” detainees. The
evidence will demonstrate powerfully that there was no reason to house JS in Cell 101 other than
to further the defendants’ unlawful agreement to scare and punish JS. Contrary to defendant
Sydnor’s and Lanham’s statements in their official reports, documentary evidence and testimony
will prove that there was no problem with a drain in the detox cells on the night of February 14,
2003; in fact, the evidence will show that an individual who was transported to the GCDC with
JS actually spent the entire night in the very detox cell in which JS was originally housed.

The evidence will also show that there were numerous beds available in other detox cells
on the night of February 14, 2003, and that there were beds available in other, safer general
population cells closer to the front of the jail. Even more significantly, the evidence will show
that Cell 101 was actually filled to capacity that night, even before JS was locked in that cell to
be raped.

Finally, the government will prove that defendants Sydnor and Lanham have admitted
that they were “worried” about JS’s fate inside Cell 101, and that they nevertheless left him there
in danger, making no efforts later in the night even to check on his well-being. The government
will also prove that defendant Sydnor placed JS into Cell 101 knowing that inmate Zipp was the
“ring leader” of the Cell, and knowing that Zipp had a proclivity for walking around in the nude.

III. Legal Analysis

A. Count 1: 18 U.S.C. § 241 charge against Sydnor, Lanham, and Freeman
Count One of the Indictment charges Sydnor, Lanham, Freeman, and unindicted inmate
co-conspirators, with engaging in a “conspiracy against rights” in violation of 18 U.S.C. § 241,
which prohibits two or more persons from conspiring to “injure, oppress, threaten, or intimidate
any person . . . in the free exercise or enjoyment of a any right or privilege secured to him by the
Constitution.” Count One further charges that the acts committed in violation section 241
“include aggravated sexual abuse,” which makes the offense punishable by life in prison.

In order to prevail on Count One, the government must prove three elements beyond a
reasonable doubt: (1) that a conspiracy existed; (2) that the purpose of the conspiracy was to
injure, oppress, threaten or intimidate one or more individuals within the United States with the
intent to interfere with the free exercise or enjoyment of a right protected by the Constitution of
the Untied States – here the right of JS not to be deprived of liberty without due process of law
while in official custody; and (3) that each defendant knowingly and voluntarily joined the
conspiracy.

While a prosecution pursuant to Section 241 is subject to the general principles of
conspiracy law, Section 241 differs from the general conspiracy statute, 18 U.S.C. § 371, in
several respects. First, Section 241 does not by its terms require the government to prove that
any of the co-conspirators committed an overt act in furtherance of the conspiracy. United
States v. Whitney, 229 F.3d 1296, 1300 (10th Cir. 2000); United States v. Skillman, 922 F.2d
1370, 1375-76 (9th Cir. 1991). See generally United States v. Shabani, 513 U.S. 10 (1994) (21
U.S.C. § 846, which unlike § 371 does not refer to overt acts, does not require proof of an overt
act). Moreover, while the purpose of a conspiracy charged under Section 371 can be to commit
any federal crime, the purpose of a conspiracy charged under Section 241 must be to interfere
with a right protected by the Constitution or federal law.

As will be clear from the discussion that follows, defendants Sydnor and Lanham have
admitted the elements of a Section 241 conspiracy by acknowledging that they agreed to punish
JS for speeding and eluding the police by leaving JS unsupervised in a cell with inmates whom
they had enlisted to “scare” or “fuck with” him. The evidence will also establish that, although
he has not confessed the elements in his out-of-court statements, defendant Freeman was an
integral part of the agreement to punish JS.

1. Existence of a Conspiracy

The crime of conspiracy is an agreement between two or more persons to do something
the law forbids. United States v. Feola, 420 U.S. 671, 695-96 (1975); United States v. Epley, 52
F. 3d 571, 576 (6th Cir. 1995) (in §241 prosecution, government must prove two or more
persons knowingly agreed to deprive another of constitutional right). Because the agreement
itself is the crime, the government is not required to prove that the underlying substantive
offense was completed in order to establish the existence of a conspiracy. United States v.
Fruehauf Corp., 577 F.2d 1038, 1071 (6th Cir. 1978).

An “agreement” is "a simple understanding between the parties." United States v.
Beverly, 369 F.3d 516, 532 (6th Cir. 2004). See also Glasser v. United States, 315 U.S. 60, 80
(1942). The government is not required to prove that there was a formal agreement, written or
spoken, or that everyone involved in the conspiracy agreed on all of its details. Rather, the
government is required to prove merely that there was a “mutual understanding” between each
defendant and at least one other person to unlawfully punish JS in violation of his Constitutional
rights. Because conspiracies, by their very nature, are clandestine schemes, the existence of an
agreement may be proven indirectly, by facts and circumstances which lead to a conclusion that
an agreement existed. See Barger, 931 F.2d at 369 (“[a] conspiracy may be inferred from
circumstantial evidence that can reasonably be interpreted as participation in the common plan");
United States v. Bavers, 787 F.2d 1022, 1026 (6th Cir. 1985) (“a tacit or mutual understanding
among the parties is sufficient to show a conspiratorial agreement”) (emphasis added).

2. Purpose of the conspiracy was to injure, oppress, threaten, or intimidate one or
more individuals in the exercise of a Constitutional right

In order to meet the second element, the government is required to prove that the object
of the defendants’ agreement was to interfere with another person’s exercise of a constitutional
right. See United States v. McDermott, 29 F.3d 404, 408-09 (8th Cir. 1994) (affirming use of §
241 instruction that defined “injure,” “oppress,” “threaten,” or “intimidate” as “not used in any
technical sense, but ... cover[ing] a variety of conduct intended to harm, frighten, punish or
prevent the free action of other persons.") In this case, the right at issue is the right of a pre-trial
detainee under the Due Process Clause of the Fourteenth Amendment not to deprived of liberty
without due process of law, which includes the substantive due process right to be free from
punishment by an official custodian that has no legitimate law enforcement purpose. See Bell v.
Wolfish, 441 U.S. 520, 535-39 & n.20 (1979) (“[U]nder the Due Process Clause, a detainee may
not be punished prior to an adjudication of guilt in accordance with due process of law . . .
Retribution and deterrence are not legitimate non-punitive governmental objectives.”). See
Lyons v. Powell, 838 F.2d 28, 29-30 (1st Cir. 1988) (the intent to punish a detainee can be
inferred if no legitimate governmental purpose can rationally be assigned to the action taken
against the detainee or if alternative, less harsh action was available). In proving that the object
of the conspiracy was to punish JS in violation of the Fourteenth Amendment, the government
need not prove that the defendants understood that their goal would violate JS’s constitutional
rights; rather, the government must prove that the defendants intended to do something that
would have the effect of depriving JS of a clearly established constitutional right. See Screws v.
United States, 325 U.S. 91, 104 (1945); United States v. Lanier, 520 U.S. 259 (1997); United
States v. Brown, 49 F.3d 1162, 1165 (6th Cir.1995) (“The United States need not prove that the
defendant actually knew it was a constitutional right being conspired against or violated.”).

As noted above, the defendants agreed with each other that they would “teach a lesson”
to JS for speeding and eluding the police by placing him unsupervised in a general population
cell with inmates they enlisted to “scare” him. The government will prove that this scheme had
no purpose other than exacting retribution against JS for the crime for which he was arrested,
and that abandoning JS to the devices of a group of unsupervised convicted criminals could not
serve any rational government purpose. The government will prove the defendants’ knew their
actions were wrong by highlighting their post-incident efforts to create a false justification for
placing JS in Cell 101 in violation of GCDC policy and to otherwise obstruct the investigation of
the incident.

3. Each member knowingly and voluntarily joined the conspiracy

The final element the government must prove in order to establish that the defendants are
guilty of the crime of conspiracy is that each of them knowingly and voluntarily joined the
agreement and sought to further its objectives. It does not matter for purposes of proving the
existence of a conspiracy that not every defendant participated in every phase of the conspiracy.
See United States v. Searan, 259 F.3d 434, 441-43 (6th Cir. 2001). "The defendant[s] need only
'know of the conspiracy, associate himself with it and knowingly contribute his efforts to its
furtherance.'" Beverly, 369 F. 3d at 532 (quoting United States v. Barger, 931 F.2d 359, 369 (6th
Cir. 1991)). "The connection of the defendant need only be slight if there is sufficient evidence
to establish that connection beyond a reasonable doubt." United States v. Christian, 786 F.2d
203, 211 (6th Cir. 1986) (quoting United States v. Batimana, 623 F.2d 1366, 1368 (9th Cir.
1980)).

A defendant’s knowledge and participation in a conspiracy may be proven indirectly by
circumstantial evidence leading to the conclusion that he knew the conspiracy’s main purpose,
which in this case was to punish and scare JS by placing him in a general population cell. See
Glasser v. United States, 315 U.S. 60, 80 (1942); Christian, 786 F.2d at 211. In fact, whether a
defendant intended to join a conspiracy generally cannot be proven directly because there is no
way of directly scrutinizing the workings of the human mind. Thus, a defendant's knowledge
and voluntary participation in a conspiracy may be inferred from surrounding circumstances,
including the defendant’s actions and reactions to those circumstances. See Hodges, 935 F.2d at
773; Christian, 786 F.2d at 211.

There is substantial evidence tying each defendant to the conspiracy. As noted above,
Sydnor and Lanham have admitted their agreement to teach a lesson to JS by having him
“scared” by inmates in Cell 101. Multiple witnesses will testify that Freeman participated in the
taunting of JS in the booking area and was present for the discussion between Sydnor and
Lanham about scaring JS. Lanham and Freeman then furthered the agreement by speaking with
Bobby Wright in the presence of other inmates, who then relayed the message about scaring JS
to the remaining inmates in the cell. Sydnor then placed JS in Cell 101 and left him there, even
though he saw that numerous inmates in and around Cell 101 were engaging in sexually
aggressive conduct in anticipation of JS’s arrival. Virtually immediately after Sydnor left the
hallway, inmates inside Cell 101 sexually assaulted JS. All of the defendants will be further tied
to the conspiracy by the false reports they wrote following the incident.

4. Acts in furtherance of the conspiracy included aggravated sexual abuse

Once the jury has determined that the defendants engaged in each of the elements of a
conspiracy against rights in violation of 18 U.S.C. § 241, they will be asked to determine
whether acts committed in furtherance of the conspiracy included “aggravated sexual abuse.”1
If the jury answers in the affirmative, the offense will be eligible for the statutory sentencing
enhancement to life in prison. In order for the jury to make this finding, the government must
prove (1) that JS was subjected to aggravated sexual abuse; and (2) that the aggravated sexual
abuse was in furtherance of the conspiracy charged in Count 1.

1 It is important here to note that the object of the conspiracy was to punish JS in a manner that
had no legitimate law enforcement purpose, and not specifically to sexually assault him. The
government submits that there is no legitimate law enforcement purpose that involves
corrections officers enlisting convicted criminals to scare a traffic offender and then leaving that
traffic offender locked in an unsupervised cell with those criminals, and that this agreement
constitutes a conspiracy to violate the Fourteenth Amendment, regardless of what the inmates
subsequently do to the traffic offender. As such, proof of the foreseeability of the sexual assault
is not required in order for the defendants to be found guilty of the conspiracy charge.

a. JS was subjected to aggravated sexual abuse

Aggravated sexual abuse is defined in 18 U.S.C. § 2241 as “knowingly caus[ing] another
person to engage in a sexual act – (1) by using force against that other person; or (2) by placing
that other person in fear that any person will be subjected to death, serious bodily injury or
kidnapping. . .” A “sexual act” is defined as, inter alia, any penetration of the vagina, anus, or
mouth, by penis, hand, finger, or other object. See 18 U.S.C. § 2246. The evidence at trial will
establish that inmate Victor Zipp forcibly penetrated JS’s anus with his penis, and that Zipp and
other inmates forced JS to perform oral sex on Zipp by means of physical violence and threats of
physical violence, thereby proving that JS was subjected to aggravated sexual abuse.

b. The aggravated sexual abuse perpetrated by inmates in Cell 101
was in furtherance of the conspiracy to punish JS.

In order to demonstrate that the aggravated sexual abuse that JS suffered inside Cell 101
was in furtherance of the conspiracy charged in Count One, the government must first establish
that the Cell 101 inmates were members of the conspiracy. The government must then prove
that the acts constituting aggravated sexual abuse were a reasonably foreseeable outgrowth of the
agreement the defendants made with the Cell 101 inmates to punish and scare JS. See Pinkerton
v. United States, 328 U.S. 640, 647-48 (1946); United States v. Lawson, 872 F.2d 179, 182 (6th
Cir.1989) (holding that co-conspirators are liable for all reasonably foreseeable acts in
furtherance of the conspiracy). Members of a conspiracy are responsible for acts in furtherance
of the conspiracy that occurred after their period of direct participation. Hyde v. United States,
225 U.S. 347 (1912); Robinson, 390 F.3d at 882; United States v. Rogers, 118 F.3d 466, 473-74
(6th Cir. 1997) (holding that members of a conspiracy remain members unless they affirmatively
withdraw from the conspiracy).

In order to determine whether or not a particular action was foreseeable, it does not
matter if a particular co-conspirator did not specifically intend for that action to occur. Rather,
the question is whether, in the light of all of the circumstances known to the defendant, he should
have foreseen that the particular outcome was possible. See United States v. Lawson, 872 F.2d
179, 182 (6th Cir. 1989); United States v. Molina, 106 F.3d 1118, 1121 (2d Cir. 1997). In this
case, then, the question for the jury will be whether, in light of all of the circumstances known to
the defendants, they should have anticipated that the inmates the defendants had instructed to
“scare” JS might sexually assault him once they were left to their own devices with him locked
in their cell.

As demonstrated above, the inmates who sexually assaulted JS were part of the
conspiracy. Witnesses will testify that numerous inmates gathered around to hear the
conversation between Lanham, Freeman, and Bobby Wright during which the instruction to
“scare” and “fuck with” JS was delivered. The evidence will further demonstrate that inmates
immediately reacted to the instruction – in Lanham’s and Freeman’s presence – with
demonstrable excitement, including “whooping and hollering”. The inmates who stood at the
door then passed on to the remaining inmates in Cell 101 the news that a young boy was being
brought to the cell and that the guards wanted him “scared.” The evidence will demonstrate that
the inmates in Hallway 26 greeted JS’s arrival in the hallway with sexual catcalls that were heard
by Sydnor, Powell, and JS, underlining the fact that the inmates were expecting JS and
anticipating their role in “scaring” him. Finally, the evidence will show that inmates surrounded
JS at the door of the cell and commenced the sexual assault almost immediately after he was left
in the cell, further underlining the fact that the inmates believed they had the deputies’ blessing
for the assault to the assault.

The government will also prove that it was entirely foreseeable that JS, a small, 18-yearold
boy with highlighted blond hair would be sexually assaulted inside Cell 101 after the
defendants primed the inmates to scare JS. Multiple witnesses who will describe the sexually
charged atmosphere that surrounded JS on the night of the incident, including the sexual
comments directed at him by the defendants, as well as the sexually charged behavior of the
inmates in Hallway 26. Once again, defendant Sydnor has admitted that he should have
anticipated the rape and sexual abuse of JS by admitting that he heard the sexual catcalls and that
he knew that Zipp, the “ring leader of cell 101,” was known for walking around the cell in the
nude.

B. Count 2: The 18 U.S.C. § 242 Charge against Sydnor, Lanham and Freeman

Count Two of the Indictment charges the defendants with aiding and abetting each other
in a “deprivation of rights under color of law” in violation of 18 U.S.C. § 242, which provides in
relevant part:

Whoever, under color of any law, . . . willfully subjects any person
. . . to the deprivation of any rights, privileges, or immunities
secured or protected by the Constitution or laws of the United
States [shall be guilty of a crime].

The Indictment further charges that the defendants’ violation of Section 242 resulted in bodily
injury to JS, thereby rendering the offense a felony.

In order to prevail on Count Two, the government must prove four elements beyond a
reasonable doubt: (1) that the defendants acted under color of law; (2) that they deprived JS of a
right secured and protected by the Constitution – in this case his right under the Due Process
Clause of the Fourteenth Amendment to be free from conditions of confinement in which he was
likely to be harmed; (3) that the defendants acted willfully; and (4) that JS suffered bodily injury
as a result of being deprived of his Constitutional right to Due Process.

Once again, both Sydnor and Lanham have essentially admitted the elements of this
offense by acknowledging that they were “worried” about and “could not control” JS’s fate once
he was locked into Cell 101. Witness testimony will establish that Freeman also knew about the
dangers JS faced in Cell 101 and that he also did nothing to ameliorate those known dangers.

1. Color of Law

To act under “color of law” simply means to act under some form of state-sanctioned
authority. West v. Atkins, 487 U.S. 42 (1988); Griffin v. Maryland, 378 U.S. 130, 135 (1964);
Williams v. United States, 341 U.S. 97, 99-100 (1951); United States v. Classic, 313 U.S. 299,
326 (1941). For purposes of proving a violation of Section 242, it does not matter whether the
action taken in the defendant’s official capacity was an abuse of his authority. See Screws v.
United States, 325 U.S. 91, 111 (1945). It will be undisputed that the defendants were acting in
their capacity as deputy jailers when they engaged in the conduct that forms the basis for the
charges in Count Two.

2. Deprivation of a Constitutional Right

As noted above, JS had just been arrested on charges of speeding and eluding the police
when he was brought to the GCDC on February 13, 2003, and was therefore a pre-trial detainee.
The right of a pre-trial detainee to personal security while in official custody is governed by the
Due Process Clause of the Fourteenth Amendment. See Graham v. Connor, 490 U.S. 386, 395
n.10 (1989); United States v. Budd, 496 F.3d 517, 530 (6th Cir. 2007). An official custodian
violates this right when he acts with deliberate indifference to a known serious risk that the pretrial
detainee will be harmed. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Watkins v. City
of Battle Creek, 273 F.3d 682, 685-86 (6th Cir. 2001). An official custodian’s duty to protect
pre-trial detainees from known risks of harm includes risks posed to them by other detainees
with whom they are confined. See Farmer, 511 U.S. at 833 (“[P]rison officials have a duty . . .
to protect prisoners from violence at the hands of other prisoners.”); Leary v. Livingston County,
528 F.3d 438 (6th Cir. 2008). In order to prove that a defendant has exhibited deliberate
indifference to a detainee’s right to be kept free from harm, the government must prove that the
defendant subjectively knew about and disregarded an “‘objectively’ substantial risk of serious
harm.” Id. at 441 (quoting Farmer, 511 U.S. at 834).

The government will prove that the defendants aided and abetted each other in acting
with deliberate indifference to a known risk that JS would be harmed in Cell 101 with
admissions and testimony that will establish that the defendants subjectively knew that JS was a
physically and emotionally vulnerable high school student, that Hallway 26 was one of the most
isolated and dangerous parts of the GCDC, and that the defendants had themselves solicited
inmates inside cell 101 to scare JS. The government will also establish through the testimony of
multiple witnesses who worked at the GCDC and who observed JS that the risk to JS was
obvious and therefore “objectively” serious.

3. Willfullness

In order to prove that the defendants’ conduct was willful within the meaning of Section
242, the government must establish that the defendants acted with the specific intent “to deprive
a person of a right which has been made specific either by the express terms of the Constitution
or laws of the United States or by decisions interpreting them.” Screws v. United States, 325
U.S. 91, 104 (1945). A “willful act” is one committed either “in open defiance or in reckless
disregard of a constitutional requirement which has been made specific and definite.” Screws,
325 U.S. at 105. The defendant must know that what he is doing is wrong and yet choose to do
it anyway, although he need not be thinking in constitutional terms. Id. at 106. The Supreme
Court has held that a defendant acts with the requisite specific intent if he acts with a bad
purpose – i.e., knowing that his actions are wrong – with the effect of violating a clearly
established constitutional right. See United States v. Lanier, 520 U.S. 259 (1997).

It is well established that pre-trial detainees enjoy a due process right not to be subjected
to a known risk of harm that is then deliberately disregarded by persons acting under color of
law. In order to prove that the defendants’ actions were willful, the government must therefore
prove that the defendants’ purposely ignored a known risk of harm to JS while knowing that it
was wrong to do so. The government will prove that the defendants’ acted willfully with the
same evidence that establishes their willfull participation in a conspiracy against rights.

4. Bodily Injury

Bodily injury means any injury to the body, no matter how minor or temporary, including
pure physical pain. See Hudson v. McMillian, 503 U.S. 1, 5 (1992). The government will prove
that JS suffered physical pain, bruising, and abrasions, when inmates inside Cell 101 beat him
with their shoes, as well as when Victor Zipp forcibly sodomized JS and when Bobby Castillo
struck and attempted to choke JS in order to compel him to perform oral sex on Zipp. JS will
testify to the pain that he suffered, which will be corroborated by at least one inmate who
witnessed the assault, and by the nurse who treated JS the following morning.

C. Counts 3-6: 18 U.S.C. § 1519 Charges Against Sydnor, Lanham, and
Freeman

Counts Three through Six charge the defendants with separate violations of 18 U.S.C. §
1519 for writing false official reports during the course of the investigation of the circumstances
surrounding the sexual assault of JS. Section 1519 provides in relevant part:

Whoever knowingly . . . falsifies, or makes a false entry in any record, document,
or tangible object with the intent to impede, obstruct, or influence the
investigation or proper administration of any matter within the jurisdiction of any
department or agency of the United States . . ., or in contemplation of any such
matter or case, [shall be guilty of a crime].

In order to prevail on this Count, the government must prove the following three
elements: (1) that the defendant acted knowingly; (2) that the defendant concealed, covered up,
falsified, or made a false entry in any record or document; and (3) that the defendant acted with
intent to impede, obstruct, or influence the investigation or proper administration of a matter
within the jurisdiction of any department or agency of the United States or in relation to or
contemplation of any such matter or case. See S. Rep. No. 107-146, pp. 14-15 (2002) (“Section
1519 is meant to apply broadly to any acts to destroy or fabricate physical evidence so long as
they are done with the intent to obstruct, impede or influence the investigation of proper
administration of any matter, and such matter is within the jurisdiction of an agency of the
United States, or such acts done whether in relation to or in contemplation of such a matter or
investigation. This statute is specifically meant not to include any technical requirement, which
some courts have read into other obstruction of justice statutes, to tie the obstructive conduct to a
pending or imminent proceeding or matter.”).

The government will prove that the defendants wrote false official reports after they
learned of an official investigation into the sexual assault of JS, which was a matter within the
jurisdiction of the Federal Bureau of Investigation (“FBI”), and that the defendants wrote their
reports with the intent of influencing that investigation. Defendants Sydnor and Lanham have
admitted under oath that their official reports were false, and the evidence will demonstrate
beyond any reasonable doubt that Freeman’s report stating that he went to Hallway 26 in order to
do a secure check for Sydnor is also demonstrably false. Moreover, Jack Powell will testify that
Sydnor told him that JS had been sexually assaulted in Cell 101 and that GCDC management
was investigating the incident. Sydnor then presented Powell with a typewritten statement that
he asked Powell to sign. Other GCDC employees will testify that persons on duty the night of
February 13-14 were also asked to write incident reports. Because the government is not
required to prove that the defendants knew that the FBI had jurisdiction to investigate this
matter, the Court will be permitted to take judicial notice of the fact that the FBI did, in fact,
have such jurisdiction. See Legislative History of Title VIII of HR 2673: The Sarbanes Oxley-
Act of 2002, Remarks by Mr. Leahy in the Senate, July 26, 2002, pp. S7418-7421. (“The fact
that a matter is within the jurisdiction of a federal agency is intended to be a jurisdictional
matter, and not in any way linked to the intent of the defendant. . . . This statute is specifically
meant not to include any technical requirement, which some courts have read into other
obstruction of justice statutes, to tie the obstructive conduct to a pending or imminent proceeding
or matter by intent or otherwise.”)(emphasis added). Cf. United States v. Yermian, 468 U.S. 63,
75 (1984) (“Both the plain language and the legislative history establish that proof of actual
knowledge of federal agency jurisdiction is not required under Section 1001.”). See also United
States v. Brown, 151 F.3d 476, 484 (6th Cir. 1998) (“It is not necessary . . . for the government to
show that a statement was made with actual knowledge of federal agency jurisdiction.”).

D. Count 7: 18 U.S.C. § 1512(b)(3) Charge Against Sydnor

Count 7 charges defendant Sydnor with obstructing justice in violation of 18 U.S.C. §
1512(b)(3) by corruptly persuading a fellow Deputy Jailer to make false statements about the JS
incident with the intent to hinder, delay, or prevent the communication of truthful information to
a federal law enforcement officer. The elements of this offense are: (1) that the defendant
knowingly corruptly persuaded another person; (2) that the defendant did so with the intent to
hinder, delay, or prevent the communication of in information; (3) that such information related
to the commission of a federal offense; and (4) that the defendant believed that the person or
persons whom he corruptly persuaded might communicate with federal authorities. See United
States v. Baldyga, 233 F.3d 674, 680 (1st Cir. 2000); United States v. Causey, 185 F.3d 407 (5th
Cir. 1999); United States v. Veal, 153 F.3d 1233, 1252 (11th Cir. 1998).

1. Corrupt Persuasion

The government will prove that defendant Sydnor engaged in “corrupt persuasion” of
Wendy Guthrie by ordering her to write a statement about the JS incident that “matched” those
of the other deputies and by threatening her with reprisals if she failed to do so. Wendy
Guthrie’s testimony on this point will be corroborated by another deputy jailer, who will testify
that a distraught Guthrie told her the morning after the incident that Sydnor was pressuring her to
lie.

2. Intent to Hinder, Delay, or Prevent the Communication of Information

The government will prove that Sydnor’s threats to Guthrie came after he learned about
what had happened to JS in Cell 101 and after he learned that jail officials and the KSP were
investigating the incident, indicating his intent to prevent communication to those parties of the
true account of why JS was placed in Cell 101 on February 14, 2003. Sydnor provided his own
reports to jail authorities, who passed them to the KSP. Sydnor was therefore aware that any
official report by Guthrie would be passed on to the same authorities.

3. Relation to the Commission of a Federal Offense

As set forth above, the unlawful punishment of a pre-trial detainee and a conspiracy to
interfere with the Constitutional rights of a pre-trial detainee are federal offenses.

4. Belief that Information Might be Communicated to Federal Authorities

The government will prove that Sydnor was aware that information about violations of
inmate civil rights could be communicated to federal authorities through the testimony of other
GCDC employees who will explain that it was well known at the GCDC that claims of inmate
abuse could be adjudicated in federal court.

CONCLUSION

The United States hereby submits this Trial Brief for the Court’s assistance.

Respectfully submitted this 30th day of July 2008,

/s/ Kristy Parker
Kristy Parker
Special Litigation Counsel

U.S. Department of Justice
Civil Rights Division, Criminal Section
Reg. No. 18790 (KS)
601 D Street, N.W., Room 5528
Washington, D.C. 20005
(202) 353-8260
(202) 514-8336 fax
kristy.parker@usdoj.gov

/s/ Forrest Christian
Forrest Christian
Trial Attorney

U.S. Department of Justice
Civil Rights Division, Criminal Section
Reg. No. 46743 (VA)
601 D Street, N.W., Room 5810
Washington, D.C. 20005
(202) 514-8376
(202) 514-8336 fax
forrest.christian2@usdoj.gov

CERTIFICATE OF SERVICE

I hereby certify that on July 30, 2008, a copy of the foregoing pleading was filed
electronically. Notice of this filing will be sent by operation of the Court’s electronic filing
system to all parties indicated on the electronic filing receipt. Parties may access this filing
through the Court’s system.

Respectfully submitted,

/s/ Kristy Parker
Kristy Parker
Special Litigation Counsel

U.S. Department of Justice
Civil Rights Division, Criminal Section
Reg. No. 18690 (KS)
601 D Street, N.W., Room 5528
Washington, D.C. 20005
(202) 353-8260
(202) 514-8336 fax
kristy.parker@usdoj.gov