## F I L E D United States Court of Appeals Tenth Circuit 

### February 28, 2006
Elisabeth A. Shumaker Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,Plaintiff-Appellee/CrossAppellant,

v. MIKE LAVALLEE, ROD SCHULTZ, and ROBERT VERBICKAS,Defendants-Appellants/CrossAppellees. Nos. 03-1515, 03-1522, 03-1523, 04-1000, 04-1538, 04-1540

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D. Ct. No. 00-CR-481-D)

Brian K. Holland, Holland & Pagliuca, P.C., Denver, Colorado, appearing for Appellant/Cross-Appellee Verbickas. Richard A. Hostetler, Law Office of Richard A. Host etler, Denver, Colorado, appearing for Appellant/Cross-Appellee LaVallee. Neil McFarlane, Denver, Colorado, appearing for App ellant/Cross-Appellee Schultz. Karl N. Gellert, Attorney (R. Alexander Acosta, Ass istant Attorney General, Bradley J. Schlozman, Acting Assistant Attorney Gen eral, and Jessica Dunsay Silver, Attorney, with him on the briefs), United S tates Department of Justice, Washington, DC, appearing for Appellee/Cross-Appell ant United States.

Before TACHA , Chief Circuit Judge, BRISCOE, and LUCERO , Circuit Judges.-2-

TACHA , Chief Circuit Judge.

This appeal relates to a three-year investigation o f inmate abuse at the United States Penitentiary in Florence, Colorado (“ USP-Florence”), that resulted in charges against ten former correctional officers for conspiracy and deprivation of inmates’ constitutional rights in violation of 1 8 U.S.C. §§ 241 and 242. Following a jury trial, two correctional officers, Michael LaVallee and Rod Schultz, were found guilty of both offenses, and Ro bert Verbickas was found guilty of the substantive deprivation charge. All three men (collectively, “Appellants”) appeal both their convictions and sentences. The Government cross-appeals their sentences. Mr. Schultz also ap peals the District Court’s denial of a motion for a new trial based on newly discover ed evidence and the Government’s suppression of evidence in violation o f Brady v. Maryland . We have consolidated all five cases for disposition onappeal. We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.
I. BACKGROUND Beginning in 1997, the Government began investigati ng allegations of the widespread abuse of prisoners and the falsificationof records to cover up that abuse at USP-Florence. As a result of the investig ation, eight Bureau of Prisons (“BOP”) correctional officers were indicted and two were charged by information. Three officers—Dennis Britt, Charlotte Gutierrez, a nd Kenneth Mitchell—pleaded1 The SHU is the prison unit that prisoners were sentto if they had

disciplinary problems or were otherwise being punis hed through administrative segregation. -3- guilty and cooperated with the Government by provid ing testimony at trial. The seven remaining defendants, including Appellant s, were charged in a ten-count superceding indictment on February 6, 200 1. All seven were named in Count I, which alleged a vast conspiracy of abuse a nd cover-up, in violation of 18 U.S.C. § 241. The remaining nine counts charged ce rtain defendants with excessive force against individually named inmates in violation of the inmates’ Eighth Amendment right to be free from cruel and un usual punishment. See 18 U.S.C. § 242. At trial, the Government sought to establish a vastconspiracy to abuse inmates. Throughout trial, the Government maintain ed a “green light” theory in which it alleged that Captain Terry Hines had given the defendants the “green light to take care of business” with certain inmate s in the Special Housing Unit 1 (“SHU”) who were aggressive toward the prison staff. Several correctional officers testified that they understood this to mea n that they were to abuse inmates to let them know that aggression against pr ison staff would not be tolerated. Although not all supervisors were toler ant of the wrongful conduct, some supervisors were. Standard procedure at the SHU for any use of force required the officers to document the incident through memoranda. Additiona lly, any time there was a-4-

planned use of force, the incident was generally vi deotaped. The tapes were designed to ensure that the officers acted in accor dance with the BOP’s “Use of Force Policy.” Accordingly, in support of its conspiracy theory un der 18 U.S.C. § 241, the Government presented a case at trial that detailed the officers’ agreements to provide false reports and fabricate injuries to the mselves when they violated the BOP’s Use of Force Policy by beating inmates unjust ifiably. They presented testimony that several officers created an atmosphe re that not only tolerated abuse of inmates, but encouraged it. The Government main tained that, in addition to conspiring to do so, the officers in fact violated inmates’ civil rights through beatings and assaults. The facts of the incidents giving rise to the Appellants’ assault convictions under 18 U.S.C. § 242 are as fo llows. A. The Howard Lane Assault Testimony at trial demonstrated that Howard Lane, aUSP-Florence prisoner, wrote several letters containing sexuallyexplicit remarks to a female USP-Florence officer. After the discovery of the l etters, Mr. Verbickas escorted Mr. Lane to Captain Hines’s office, where the Capta in told Mr. Verbickas and Mr. Britt to “take this piece of shit down to SHU and g ive him a treatment.” Mr. Verbickas and Mr. Britt applied restraints to Mr. L ane’s wrists and took him to the SHU. As he was led to the SHU, Mr. Lane threat ened the officers and struggled against the restraints. When the trio ar rived at the SHU, Ms. Gutierrez-5-

opened a cell door as the other officers escorted M r. Lane inside. Mr. Britt returned to the officers’ station. Ms. Gutierrez testified that she saw Mr. Verbickas punch Mr. Lane while he was standing against the wall of the cell, his h ands still restrained behind his back. She further stated that Mr. Verbickas then p laced him on the floor and that she kicked him in the ribs so as to avoid leaving v isible injuries and the concomitant need to file an incident report. Mr. V erbickas then grabbed Mr. Lane by his collar and the seat of his pants, lifted him waist high, and dropped him on his face. Blood oozed from Mr. Lane’s lip. Finall y, Mr. Verbickas threw Mr. Lane up against the wall, leaving a blood stain. Because Mr. Lane suffered visible facial injuries a s a result of the beating, the officers discussed how they would falsify theirincident reports to avoid an investigation. The reports ultimately filed with U SP-Florence stated that Mr. Lane kicked both Mr. Verbickas and Ms. Gutierrez, a nd Mr. Lane threw himself up against the wall. To support this version of ev ents, Ms. Gutierrez testified that she inflicted an injury on herself. B. The Pedro Castillo Assault Pedro Castillo, another inmate in the SHU, was an o rderly in that unit and responsible for cleaning as directed by the officer s. During an argument with Ms. Gutierrez on the morning of April 5, 1996, Mr. Cast illo threw a mop and bucket of water onto the floor. Because of this, Mr. Cast illo lost his job as an orderly as-6-

well as the freedom associated with the job; he was forced to return to 23-hour lockdown. The Government presented evidence at trial that lat er that day, several officers met to discuss how they would further puni sh Mr. Castillo for his behavior that morning. According to the Government , the officers resolved to concoct a story that Mr. Castillo was cutting himse lf—he was a known selfmutilator—which would require them to perform a for ced-cell move. The officers assigned roles to each other in the ensuing assault . Because a video camera was perched outside Mr. Castillo’s cell, Mr. Schultz’s role in the assault was to knock the camera over so that it would not record the off icers entering the cell. After doing so, several officers entered the cell, pulled Mr. Castillo off his top bunk, put him on the floor, and restrained him with handc uffs. Additional testimony demonstrated that the officers then took Mr. Castil lo to a holding cell where Mr. Schultz and Mr. LaVallee each struck him two or thr ee times in the back with their fists while Mr. Mitchell held Mr. Castillo ag ainst the wall. Mr. Mitchell then released Mr. Castillo and walked back to the o fficers’ station approximately twenty feet away; he could hear the sound of the bl ows as the officers continued to beat Mr. Castillo. Ms. Gutierrez then entered t he cell and Mr. LaVallee told her to kick Mr. Castillo, which she did. After the assault, Mr. LaVallee told Ms. Gutierrez that they had beaten Mr. Castillo on her behalf. Following the incident, the officers again fabricat ed false reports to justify2 The four remaining defendants—James Bond, Brent Gal l, David Pruyne,

and Ken Shatto—were acquitted on all counts and, ac cordingly, are not parties to these appeals. -7- the forced-cell move. The officers reported that M r. Castillo had been cutting himself and that when the officers entered the cell to subdue him, Mr. Schultz slipped and knocked down the camera. The reports a lso stated that once the officers were inside the cell, Mr. Castillo punched one of them in the head. None of the reports mentioned that Mr. Castillo was beat en. Mr. Verbickas was charged with one count of conspir acy to violate inmates’ civil rights and three substantive assaultcounts regarding individual inmates. Mr. Schultz and Mr. LaVallee were also ch arged with conspiracy. Additionally, Mr. Schultz was charged with three su bstantive assault counts and Mr. LaVallee was charged with four. Following appr oximately eight weeks of testimony and two weeks of jury deliberations, Mr. Verbickas was convicted on one count of using excessive force against Mr. Lane and was sentenced to 30 months’ imprisonment. Both Mr. Schultz and Mr. LaV allee were convicted on the conspiracy charge and the substantive assault c harge involving Mr. Castillo. The District Court sentenced them to 41 months’ imp risonment. This appeal followed. 2 In Mr. Verbickas’s opening brief, he raises fou r issues that he claims warrant reversal of his conviction. Mr. LaVallee a nd Mr. Schultz incorporated these claims by reference into their briefs on appe al. We will therefore address-8-

these issues first, as they apply to all the Appell ants. We will then address Mr. LaVallee’s and Mr. Schultz’s additional claims of e rror in their convictions. Finally, we will address all sentencing issues incl uding the Appellants’ claimed errors under United States v. Booker , 543 U.S. 220, 125 S. Ct. 738 (2005) and the Government’s cross-appeal contesting the District C ourt’s failure to apply an enhancement for obstruction of justice and its disc retionary decision to depart downward from the applicable Guidelines range.
III. COMMON ISSUES A. Bureau of Prisons Attorney on Prosecution Team Jenifer Grundy served as a supervisory attorney forthe BOP at USPFlorence from November 1992 to April 2002. In thatposition, she was responsible for providing legal services to the fac ility as well as to correctional officers who were accused by inmates of constitutio nal violations in Bivens actions. See 28 C.F.R. § 50.15 (providing legal representation t o federal employees in actions arising out of performance of their official duties). When an officer would make a request for representation, Ms . Grundy would take the officer’s statement and then submit it to the Department of Justice (“DOJ”). The DOJ would determine whether representation was warr anted. Prior to trial, several of the defendants in this c ase had Bivens actions filed against them. Relevant to this case, Mr. LaVallee, Mr. Schultz, and David Pruyne were each named in several actions. According to t he Appellants, some of the3 For various reasons, the substance of these intervi ews later became the

subject of two motions to suppress. The District C ourt denied Mr. Pruyne’s motion to suppress as moot after Mr. Pruyne’s couns el withdrew it. The District Court denied Mr. Gall’s motion to suppress because, inter alia , there was no evidence that Mr. Gall believed that he had establi shed an attorney-client relationship with Ms. Grundy.

4 If this motion was untimely, our review would be se verely limited, and subject only to plain error review. United States v. Stiger , 413 F.3d 1185, 1195 n.5 (10th Cir. 2004). It is not clear, however, th at the facts giving rise to the motion to disqualify were known to the defendants b efore it was made. Thus, we decline to apply plain error analysis to this claim

. -9- defendants contacted Ms. Grundy to obtain DOJ repre sentation in the actions against them. Later, in connection with the instant case, Ms. Gru ndy contacted Mr. Pruyne and another of the acquitted defendants, Bre nt Gall, and requested that they speak with DOJ attorney Mark Blumberg—one of the Government’s prosecutors in this case—and an FBI agent. She didnot represent either Mr. Pruyne or Mr. Gall at their interviews. During the interviews, Mr. Pruyne and Mr. Gall were allegedly advised that they were the targets of an investigation involving the abuse of inmates. 3 On April 21, 2003, ten days into trial, it became apparent to the defendants, including Messrs. LaVallee, Schultz, and Verbickas, that Ms. Grundy was acting with the Government as part of the prosecution agai nst them. They filed a joint motion to disqualify her, 4alleging violations of Rules 1.9, 1.11 and 1.6(a) of the5 Rule 1.9 states: “A lawyer who has formerly represe nted a client in a

matter shall not thereafter represent another perso n in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former cl ient consents after consultation.” Rule 1.11(b), (e), which relate to successive gover nment and private employment, provide: (b) Except as law may otherwise expressly permit, alawyer having information that the lawyer knows is confidential g overnment information about a person acquired when the lawyerwas a public officer or employee, may not represent a private cl ient whose interests are adverse to that person in a matter in which the information could be used to the material disadvant age of that person. A firm with which that lawyer is associatedmay undertake or continue representation in the matter only if the d isqualified lawyer is screened from any participation in the matter an d is apportioned no part of the fee therefrom.

. . . (e) As used in this Rule, the Term "confidential go vernment information" means information which has been obtai ned under governmental authority and which, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and which is nototherwise available to the public. Under Rule 1.6(a), “[a] lawyer shall not reveal inf ormation relating to representation of a client unless the client consen ts after consultation, except for disclosures that are impliedly authorized in order to carry out the representation.” -10- Colorado Rules of Professional Conduct. 5 Counsel for the Government responded that Ms. Grundy’s only role in the case was to “ass ist and manage witnesses and just general management of the trial.” The Governm ent further explained that she had not been hired by the U.S. Attorney’s Office, n or was she acting as a special assistant to the U.S. Attorney. The defendants pre sented evidence, however, that Ms. Grundy was acting as a “Special AUSA” and was p articipating in witness-11-

interviews. Before ruling on the motion for disqua lification, the District Court ordered the Government to submit a written response and then denied the motion to disqualify as “utterly without merit.” The Appellants claim that Ms. Grundy’s participatio n on the prosecution team violated their constitutional right to a fair trial. Indeed, “[a] fair trial in a fair tribunal is a basic requirement of due process .” In re Murchison , 349 U.S. 133, 136 (1955). “The right to due process and a f air trial include the essential element that there is no unfair advantage to the pr osecution by reason of a prior professional relationship between a member of its s taff and a criminal defendant concerning the same or closely related matter.” State v. Boyd, 560 S.W.2d 296, 298–99 (Mo. Ct. App. 1977) (quotation omitted). “[ D]ue process is violated when an attorney represents a client and then parti cipates in the prosecution of that client with respect to the same matter.” United States v. Schell , 775 F.2d 559, 566 (4th Cir. 1985). In order to determine whether disqualification of c ounsel is warranted because of prior representation, we ordinarily unde rtake a three-part inquiry in which we ask whether “(1) an actual attorney-clientrelationship existed between the moving party and the opposing counsel; (2) the present litigation involves a matter that is substantially related to the subjectof the movant’s prior representation; and (3) the interests of the opposi ng counsel’s present client are materially adverse to the movant.” United States v. Stiger , 413 F.3d 1185, 1196-12-

(10th Cir. 2005) (quotations and citation omitted). If the moving party makes a non-frivolous allegation that he has had an attorne y-client relationship in a substantially related matter, a district court mustinvestigate the allegation further through an evidentiary hearing before denying a mot ion to disqualify. Id. Failure to do so constitutes an abuse of discretion. Id. Here, the District Court concluded that the motion to disqualify Ms. Grundy for violations of the Colorado Rules of Prof essional Conduct was frivolous. Indeed, it explicitly stated that the m otion was “utterly without merit.” On appeal, Mssrs. LaVallee and Schultz proffer no a rgument to suggest that the District Court erred in concluding that Ms. Grundy violated the rules with respect to any former relationship she may have had with th em. The only reference to a relationship between the Appellants and Ms. Grundy is the following: [S]o-called “Bivens” violations [were filed] agains t the Defendants and other correctional officers. LaVallee, Schultz and Bond . . . were named as Defendants in Turner . Pruyne was named as a defendant in Bryant, Collins, and Verdecia. Pruyne and other Defendants sought legal representation from the . . . DOJ . . . . Gr undy represented Pruyne and these Defendants regarding their request s for DOJ representation. She entered into an attorney-clien t relationship with Defendants and gathered relevant information regard ing their requests to be afforded DOJ legal representation inthese civil actions. Based on this conclusory argument, we cannot conclu de that District Court erred in finding Mr. LaVallee’s and Mr. Schultz’s argument frivolous. In fact, neither Appellant ever averred that he actually spoke with Ms. Grundy. At the District-13-

Court level, the factual basis for Mr. Schultz’s cl aim—which the District Court rejected—amounted to an assertion that “[u]pon info rmation and belief statements were given to Ms. Grundy and or a representative of the U.S. Government.” We therefore find no abuse of discretion in the Distri ct Court’s conclusion on this point. Nonetheless, the Appellants argue that the court er red because it failed to conduct an evidentiary hearing to determine the ext ent of Ms. Grundy’s attorneyclient relationship with Mr. Pruyne and Mr. Gall. Although the record shows that the court had already determined that no attorney-c lient relationship existed with respect to Mr. Gall, the same cannot be said with r espect to Mr. Pruyne. Even so, we need not decide whether the District Court erred in failing to hold an evidentiary hearing. Both Mr. Gall and Mr. Pruyne were acquitted of the charges against them and therefore are not parties to this appeal. The remaining issue, then, is whether the three App ellants were denied a fair trial because Ms. Grundy purportedly obtained privileged information through her alleged prior representation of the Appellants’ codefendants Messrs. Gall and Pruyne such that the prosecution had an unfair adva ntage in obtaining the Appellants’ convictions. The Fourth Circuit confro nted similar circumstances in United States v. Schell , 775 F.2d 559. Schellinvolved the indictment of thirty-nine individuals for numerous crimes, including conspiracy to distribute controll ed substances in violation of 21-14-

U.S.C. § 846. During the investigation of the crim es, three individuals under investigation sought representation from an attorne y, David Jividen. Id. at 562–63. Mr. Jividen represented them when they app eared before the third grand jury in the matter. Id. at 562. Several months later, Mr. Jividen became employed as an Assistant United States Attorney in the district in which the appellants were later indicted. Id. at 562. In his role as a U.S. Attorney, he appeared before the fourth grand jury leading up to the indictments. Id. at 563. After the grand jury returned its indictment, Mr. J ividen no longer participated in the prosecution of his former clients nor participated in any proceeding in which his former clients were witnesses or potential witn esses. Id. at 564. All three of his clients, along with thirty-five coconspirators, were convicted. Id. On appeal, two of Mr. Jividen’s former clients and two of their coconspirators appealed their convictions, arguing that Mr. Jividen’s appearance before the fourth grand jury violated their due pro cess rights and was per se prejudicial. Id. at 564–65. The Fourth Circuit stated: The relationship between an attorney and his clientis a sacred one. In that relationship, the client must be secure in the knowledge that any information he reveals to counsel will remain c onfidential. The confidentiality of the attorney-client relationship is severely compromised, if not destroyed, when, after representing a client, a lawyer joins in the criminal prosecution of that cl ient with respect to the identical matter about which the attorney origi nally counseled the client. Such switching of sides is fundamentally u nfair and inherently prejudicial. Without question, the clie nt’s right to a fair trial, secured by the due process clauses of the fi fth and fourteenth amendments, is compromised under these circumstance s.-15-

Id. at 565 (emphasis omitted). It therefore reversed t he convictions of Mr. Jividen’s former clients. Id. at 566. In so concluding, however, the court refus ed to find constitutional error with respect to the ap pellants who had established no attorney-client relationship with Mr. Jividen and w ho had not demonstrated that Mr. Jividen’s former clients had imparted to him co nfidential information regarding them. Id. at 566. Similarly, in McFarlan v. District Court , the Supreme Court of Colorado held that a prosecutor is not automatically disqual ified from prosecuting an accused because of a prior attorney-client relation ship with a codefendant of the accused. 718 P.2d 247, 250 (Colo. 1986) (listing c ases). It identified two factors to consider in determining whether to disqualify a prosecutor in such a case: (1) whether the accused had an attorney-client relation ship with the prosecutor; and (2) whether there is any evidence that the prosecut or actually received confidential information from or about the accused. Id. Here, the Appellants make only conclusory allegatio ns that they had an attorney-client relationship with Ms. Grundy. Ther e is no evidence that Mr. Pruyne or any defendant imparted confidential infor mation to Ms. Grundy regarding the Appellants. Mr. Pruyne applied for a nd obtained DOJ representation for the three Bivens actions filed against him prior to the prosecution of the instant case. There is no evide nce to suggest that Mr. Pruyne6 To echo the words of United States v. Bolton , 905 F.2d 319, 322 (10th Cir.

1990), “[w]e cannot fathom the obdurate persistence of the prosecution in keeping [Ms. Grundy] on this case. The decision, in the fa ce of objection . . . is, to say the least, aberrant. The exercise of a modicum of prudence on the part of the prosecutor would have made consideration of this is sue on appeal completely unnecessary.” -16- communicated confidential information to Ms. Grundyon any topic other than the subject of those Bivens actions. The three inmates who filed those suits were not victims of the conspiracy alleged in the indictmentagainst the Appellants. In other words, the Appellants have failed to establis h that they were in any way prejudiced by Ms. Grundy’s participation in their p rosecution. We therefore hold that the Appellants suffered no constitutional defe ct in their trials. 6 B. Jury Instructions The Appellants raise several claims of error with r espect to the instructions given to the jury. First, they argue that the Dist rict Court erred in instructing the jury on the elements of both the conspiracy and sub stantive offenses. We review jury instructions in their entirety under a de novo standard of review. United States v. Laughlin , 26 F.3d 1523, 1528 (10th Cir. 1994). “In so doin g, we analyze, in light of the record, whether the instru ctions state the governing law and whether the jury was provided an intelligent, m eaningful understanding of the applicable issues and standards.” Id. We will reverse only if we have “substantial doubt that the jury was fairly guided. ” United States v. Smith , 13 F.3d 1421, 1424 (10th Cir. 1994) (quotation omitted ). Where no objection was-17-

made below, however, we review only for plain error

. United States v. Ellzey , 936 F.2d 492, 500 (10th Cir. 1991).
1. 18 U.S.C. § 241: Conspiracy Against Rights 18 U.S.C. § 241 prohibits two or more people from c onspiring “to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free e xercise or enjoyment of any right or privilege secured to him by the Constituti on or laws of the United States, or because of his having so exercised the same.” A fter reading the statute to the jury, the District Court instructed it that there w ere four necessary elements to prove conspiracy. Instruction No. 33 stated in part: ONE: The defendant whose case you are considering entered

into a conspiracy with one or more persons to injur e, oppress, threaten or intimidate inmates. TWO: The conspiracy was directed at the deprivation of a right

which is secured or protected by the Constitution o r laws of the United States, here, the right not to be subjected to cruel and unusual punishment. THREE: The defendant acted willfully to deprive inmates of such

right. FOUR: The defendant acted under color of law. If you should find from your consideration of all t he evidence as to each defendant that any of these elements has not b een proved . . . beyond a reasonable doubt, then you should find the defendant not guilty. The District Court then elaborated on each element of the crime. Four subsequent instructions expanded upon the first ele ment and described what it meant to be part of a conspiracy. In addition, Ins truction No. 39 informed the7 Only Mr. LaVallee and Mr. Schultz complain of the 1 8 U.S.C. § 241

instruction; Mr. Verbickas was not convicted on that charge. -18- jury that the words “injure,” “oppress,” “threaten, ” or “intimidate,” “are not used in any technical sense but may cover a variety of c onduct intended to harm, frighten, prevent, or punish the free action of oth er persons.” Instruction No. 40 elaborated on the second element—that the conspiracy must be directed at the deprivation of the constitu tional right to be free from cruel and unusual punishment. It provided that “the unne cessary and wanton infliction of pain constitutes cruel and unusual punishment” and whether the action taken by the defendant amounts to such conduct “turns on whe ther the force was applied in a good-faith effort to maintain or restore discipli ne or maliciously and sadistically for the very purpose of causing harm.” It further provided that “[f]actors to be considered in making the determination include the extent of injury suffered by an inmate, the need for the application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the person using force on the inmate, and any efforts made to temperthe severity of a forceful response.” Messrs. LaVallee and Schultz 7 argue that use of certain statutory language in the above instructions is inconsistent with and dilutes the constitutional standard for determining whether there has been a c onspiracy to deprive an inmate of his Eighth Amendment rights. Specificall y, they argue that the words-19-

“injure, oppress, threaten, or intimidate,” which appear in 18 U.S.C. § 241 and Instructions Nos. 33 and 39, allowed a reasonable j ury to infer that something less than the “unnecessary and wanton infliction of pain ” is sufficient to convict, which is inconsistent with Hudson v. McMillan , 503 U.S. 1 (1992). In other words, their argument is that the language confusedthe jury and permitted it to convict based on a finding that a defendant conspir ed to threaten or intimidate inmates, not that he conspired to violate their Eig hth Amendment rights. Cf. United States v. Kozminski , 487 U.S. 931 (1988) (reversing convictions becaus e instruction alleging conspiracy to deprive individu als of their Thirteenth Amendment right to be free from involuntary servitu de pursuant to 18 U.S.C. § 241 allowed for conviction based upon psychologic al coercion which is not prohibited by the Thirteenth Amendment or the statu te enacted to enforce it). After reviewing the jury instructions in their enti rety, it is clear that a jury could not convict on the conspiracy charge unless i t found that the conspiracy was directed at depriving the inmates of their Eighth A mendment right. Instruction No. 33 provided that if the Government did not prov e “any of these elements” it must find the defendant under consideration not gui lty. See United States v. Almaraz , 306 F.3d 1031, 1037 (10th Cir. 2002) (stating that the court presumes “jurors attend closely to the language of instructi ons in a criminal case and follow the instructions given to them”). The same instruc tion provided that the conspiracy to injure, oppress, threaten, or intimid ate must be “directed at the-20-

deprivation of a right which is secured or protecte d by the Constitution or laws of the United States, here, the right not to be subjec ted to cruel and unusual punishment.” Further, Instruction No. 40 correctlyprescribed the scope of protection under the Eighth Amendment, stating that“the unnecessary and wanton infliction of pain constitutes cruel and unusual pu nishment.” Hudson , 503 U.S. at 5 (quotations, alteration, and citations omitted); see also Kozminski , 487 U.S. at 952–53 (holding that for purposes of prosecution un der § 241 for subjecting an individual to involuntary servitude, the jury must be instructed that involuntary servitude is the compulsion of services by the use or threatened use of physical or legal coercion). Instruction No. 39 merely elaborated on the first element—that is, what it meant to be involved in a conspiracy. After reaching a conclusion on that element of the crime, the jury also had to conclude that the object of the conspiracy was to deprive an inmate of his Eighth A mendment right, as defined by the instructions. That the individual instructi ons explaining the language “injure, oppress, threaten or intimidate” did not e xplicitly reference the scope of the constitutional right at issue did not confuse t he jury as to their task. Rather, as the District Court found, the approach was desig ned to minimize confusion. The court stated, “What you’re really asking me to do is to put in every instruction everything that’s in every other instru ction so the instructions would in effect be so confusing that no one would ever un derstand what they mean, and I reject that.” We agree. The instructions were c onsistent with the legal standard-21-

for conspiracy to deprive a person of his Eight Ame ndment right.
2. 18 U.S.C. § 242: Deprivation of Rights Under Color of Law 18 U.S.C. § 242 prohibits a person acting “under co lor of any law, statute, ordinance, regulation, or custom, [to] willfully su bject[] any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by t he Constitution or laws of the United States.” After reading the statute to the j ury, the District Court instructed it that there were four necessary elements to prove the deprivation of rights under § 242. Instruction No. 47 stated: ONE: The defendant whose case you are considering de prived

an inmate or inmates of a right which is secured or protected by the Constitution of the United States; namely the right not to be subjected to cruel and u nusual punishment; TWO: The defendant acted willfully to deprive the in mate of

such right; THREE: The defendant acted under the color of law; FOUR: The inmate suffered bodily injury as a result of the

defendant’s conduct. The Appellants first complain that the District Cou rt did not include a cautionary instruction that the de minimis use of p hysical force does not constitute cruel and unusual punishment in violatio n of the Eighth Amendment. The Appellants did not raise this objection to the District Court, and accordingly we review only for plain error.
In Hudson , the Supreme Court established that a de minimis use of force,-22-

unless it is of a sort “repugnant to the conscience of mankind,” does not violate the Eighth Amendment’s prohibition of cruel and unu sual punishment. 503 U.S. at 9–10 (quotation omitted). Though the jury instr uctions did not make this fact clear, the Appellants have failed to establish plai n error. First, Instruction No. 40, described above, helps to resolve any confusionregarding the proof needed to establish a violation of § 242. It provided that “ the unnecessary and wanton infliction of pain constitutes cruel and unusual pu nishment” and that the jury should consider the relationship between the amountof force used and the need for such force. This instruction tends to exclude the possibility of a conviction based on a de minimis use of force. Second, there was no dispute at trial about whether the force used by the Appellants was de min imis. To the contrary, the Government presented evidence that Mr. LaVallee and Mr. Schultz punched Mr. Castillo in the back numerous times while he was re strained and compliant; Mr. Mitchell testified that the sound of the blows coul d be heard in another room fifteen to twenty feet away. The Government also p resented evidence that Mr. Verbickas punched Mr. Lane while he was restrained and compliant, then picked him up off the floor waist-high and dropped him on his face, causing blood to spill from his lip. The Appellants never challenge d this testimony on the basis that the force applied was de minimis; rather, they argued that they did not commit the acts at all. On this evidence, there wa s no occasion for the jury to consider whether the force used was de minimis. Th us the District Court did not8 The Appellants do not argue that “bodily injury” as defined in Instruction

No. 48 was a misstatement of the law as it applies to the sentencing enhancement. Nor do they dispute that bodily injury resulted. -23- plainly err in failing to give such an instruction sua sponte. Next, the Appellants claim that the jury instructio ns permitted the jury to convict if it found that the inmates suffered only de minimis injuries which, they argue, is prohibited by the “unnecessary and wantoninfliction of pain” standard set forth in Hudson . Section 242 makes “it criminal to act (1) ‘willf ully’ and (2) under color of law (3) to deprive a person of right s protected by the Constitution or laws of the United States.” Lanier v. United States , 520 U.S. 259, 264 (1997). If these elements are met, and if bodily injury (bu t not death) results from the willful deprivation of the constitutional right, th e defendant is subject to a sentencing enhancement of up to ten years. 18 U.S. C. § 242. The Appellants argue that the Eighth Amendment is not violated if the inmates only suffered de minimis injuries. As such, they claim that Instruc tion No. 48, which defined “bodily injury” for purposes of the sentencing enhancement as “(1) a cut, abrasion, bruise, burn, or disfigurement; (2) physi cal pain; (3) illness; (4) impairment of the function of a bodily member, orga n, or mental faculty; or (5) any other injury to the body no matter how temporary,” misled the jury and allowed them to convict if they found merely de min imis injuries, such as a small cut or exceedingly temporary injury. 8-24-

Hudson explained that “the extent of injury suffered by a n inmate is [but] one factor that may suggest” whether the force appl ied was necessary or wanton, id. at 7, and the Court explicitly rejected a requireme nt that inmates show a “significant injury” to state a claim for excessive force in violation of the Eighth Amendment. Id at 5. Several circuits have held, however, that th ere has been no excessive force in violation of the Eighth Amendmen t when an inmate suffers only de minimis injuries. See, e.g. , Siglar v. Hightower , 112 F.3d 191, 193 (5th Cir. 1997); Norman v. Taylor , 25 F.3d 1259, 1263 (4th Cir. 1994) (en banc). Those courts draw a negative inference from the statement in Hudson that “the blows directed at Hudson, which caused bruises, swe lling, loosened teeth, and a cracked dental plate, are not de minimis for Eighth Amendment purposes. The extent of Hudson’s injuries thus provides no basis for dismissal of his § 1983 claim.” Norman , 25 F.3d at 1262 (quoting Hudson , 503 U.S. at 10). In other words, they infer from this statement that merely “ de minimis injury can serve as conclusive evidence that de minimis force was used. ” Id. We reject this view.
In Hudson , the Court explained: In the excessive force context, . . . [w]hen prison officials maliciously and sadistically use force to cause har m, contemporary standards of decency always are violated. This is true whether or not significant injury is evident. Otherwise, the Eigh th Amendment would permit any physical punishment, no matter howdiabolic or inhuman, inflicting less than some arbitrary quanti ty of injury. Such a result would have been as unacceptable to the dra fters of the Eighth Amendment as it is today.-25-

503 U.S. at 9 (internal citations omitted). It further explained that in determining whether the use of force was wanton and unnecessary , it may also be proper to evaluate the need and the amount of force used, the threat ‘reasonably perceived by the respo nsible officials,’ and “any efforts to temper the severity of a forcef ul response.” The absence of a significant injury is therefore releva nt to the Eighth Amendment inquiry, but does not end it. Id. at 7 (quotations omitted) (emphasis added). Therefore, we agree with the Third Circuit that in Hudson , the Supreme Court evidenced its “commit[ment] to an Eighth Amen dment which protects against cruel and unusual force, not merely cruel a nd unusual force that results in sufficient injury.” Brooks v. Kyler , 204 F.3d 102, 108 (3d Cir. 2000) (emphasis omitted); see also Hudson , 503 U.S. at 13 (Blackmun, J., concurring) (statin g that “[t]he Court today appropriately puts to rest a ser iously misguided view that pain inflicted by an excessive use of force is actionabl e under the Eighth Amendment only when coupled with ‘significant injury,’ e.g., injury that requires medical attention or leaves permanent marks.”). A contraryholding would mean that “a prisoner could constitutionally be attacked for the sole purpose of causing pain as long as the blows were inflicted in a manner that r esulted in visible (or palpable or diagnosable) injuries that were de minimis.” Brooks , 204 F.3d 108. We therefore hold that the government need not prove t hat an individual suffered a certain level or type of injury to establish excess ive force in violation of the Eighth Amendment and 18 U.S.C. § 242.-26-

In so holding, we recognize that the degree of inju ry may be highly relevant to the determination of the unreasonableness of the force used. But we decline to adopt a rule today, which we believe would be incon sistent with Hudson , that permits an officer to beat an inmate so long as the resulting injuries are neither permanent nor require medical attention. According ly, we conclude that the jury instructions did not mislead the jury as to the app licable law.
3. Supplemental Instruction After approximately eight weeks of testimony, the c ase was submitted to the jury. The jury deliberated for ten days, at wh ich point the district court judge called the jury into the courtroom and reread Instr uction No. 29, which provided in relevant part: A separate crime is alleged in each count of the in dictment. Under these instructions, you may find that [sic] one or more of the defendants guilty or not guilty as charged. At any time during deliberations, you may return into court with your verdict of guilty or not guilty as to any defendant concerning whom you have unanimously agreed. The court went on to state: What I’m ordering you to do is to the extent, consi stent with Instruction No. 29 and all of the other instruction s that you have received and presumably read, if you have reached averdict of either guilty or not guilty as to the defendant, I’m order ing you to put that verdict, if you’ve reached it, into an envelope, an d we will seal that envelope and . . . write the words [“]this is the v erdict for defendant blank[”] and then each of you would then sign the e nvelope and . . . return[] [it] to Mr. Keech [the courtroom deputy] f or safekeeping. It will not be returned to me because I don’t want to see it.9See Allen v. United States , 164 U.S. 492 (1896).

10 To the extent that the Appellants argue that the supplemental instruction should not have been given at all, we find that the District Court, concerned about the length of deliberations, did not abuse its disc retion in so doing . See United States v. McElhiney , 275 F.3d 928, 940 (10th Cir. 2001) (stating that whether to give an instruction at all is within the sound disc retion of the trial court). -27- And so that’s what I’m directing you to do. And I want to reiterate, I want you to do that only if . . . you have reached a verdict of guilty or not guilty as to any defendant concerning whom y ou have unanimously agreed. If you have not reached a unanimous agreement, then you don’t have to do anything. And if you have reached a unanimou s agreement, then I’m instructing you to do what I just said. The jury sealed five verdicts in envelopes that day , including the guilty verdict as to Mr. Verbickas, and two more verdicts after sever al hours of deliberation the following day, including the guilty verdicts as to Messrs. Schultz and LaVallee. The Appellants argue that this instruction is errorfor two reasons. First, they argue that it is an Allen charge 9that impermissibly coerced the jury’s verdicts. Second, they argue that the District Cou rt abused its discretion by instructing the jury to return partial verdicts as it improperly invaded the province of the jury regarding how it conducted deliberation s. We address each argument in turn. 10

a. Allen Charge
An Allen charge is “a supplemental instruction given to the jury and designed to encourage a divided jury to agree on a verdict.” United States v.-28-

Zabriskie , 415 F.3d 1139, 1147 (10th Cir. 2005). When an Allen charge “imposes such pressure on the jury such that the accuracy an d integrity of their verdict becomes uncertain,” it violates a defendant’s rightto due process and Sixth Amendment rights to an impartial jury trial and to a unanimous verdict. Id. at 1148. The District Court’s instruction in this case is no t a typical Allen charge. Generally, such an instruction urges deadlocked jur ors to “review and reconsider the evidence in the light of the views expressed by other jurors” so as to avoid a mistrial. Darks v. Mullin , 327 F.3d 1001, 1013 (10th Cir. 2003). Nonetheles s, this Court must determine whether the supplemental charge improperly coerced a jury verdict. Id. ; McElhiney , 275 F.3d at 941. Factors to consider in determin ing whether a supplemental instruction coerced a verdic t include: “(1) the language of the instruction, (2) whether the instruction is pre sented with other instructions, (3) the timing of the instruction, and (4) the length o f the jury’s subsequent deliberations.” Darks , 327 F.3d at 1013 (quotations omitted). In the first part of the inquiry, this Court asks w hether the language of the instruction is “coercive, or merely the proper exer cise of [the district court judge’s] common law right and duty to guide and ass ist the jury toward a fair and impartial verdict.” United States v. Arney , 248 F.3d 984, 988 (10th Cir. 2001) (quotations omitted). There is nothing inherently coercive about the language used by the District Court. Although the instructi on lacked protective language-29-

assuring jurors holding the minority position that they were not required to relinquish firmly held convictions, it did not incl ude any language asking jurors to reconsider their views and to change them if the y believed they were wrong; it did not press hold-out jurors to yield to the major ity position; and it did not impose any time restrictions on the deliberations. See Darks , 327 F.3d at 1014; see also Arney , 248 F.3d at 988 (an instruction directed at all j urors, rather than only those holding the minority view, reduces the p ossibility of coercion). Further, though the District Court “ordered” and “d irected” the jury to seal any unanimous decisions—guilty or not guilty—in a seale d envelope while they continued to deliberate on the remaining defendants , it did not instruct them to reach a unanimous verdict as to any remaining defen dants or charges. In fact, the District Court emphasized that they “don’t have to do anything” if the jurors had not reached a unanimous decision. The Appellants argue that the absence of cautionary language to ameliorate the coercive effect of the supplemental instruction—such as reminding jurors that they should not surrender their conscientiously hel d convictions and that the burden of proof belongs to the Government—makes thi s instruction per se coercive. To this end, they cite our opinion in United States v. McElhiney , in which this Court stated that it “has never . . . approved of an Allen charge that failed to incorporate an admonition regarding the j uror’s conscientiously held convictions.” 275 F.3d 928, 943 (10th Cir. 2001). Despite the Appellants’11 We also note that since our decision in McElhiney, we have approved of

at least one Allen charge that did not contain the recommended cautio nary language. See Darks , 327 F.3d 1014 (jury not coerced in returning deat h sentence). -30- assertions to the contrary, however, McElhiney did not spell out a per se rule regarding coercion. Instead, we found that the abs ence of cautionary language in that case meant that the coercive effect of the ins truction was “substantially heightened.” See id. at 944. Here, however, we harken back to the langu age of the particular instruction and find that it was notinherently coercive. 11 In the next two steps of the analysis, we consider the timing of the instruction and whether it was presented with otherinstructions. While the preferred practice is to give an Allen charge prior to jury deliberations and along with other instructions, there is no per se rule ag ainst giving an Allen charge once the jury has begun to deliberate. Arney , 248 F.3d at 988–89. In fact, this Court has found on numerous occasions that Allen charges given during deliberations were not unduly coercive. Id. at 989 (listing cases). Moreover, the District Co urt called the jury in to give the instruction on the c ourt’s own accord, before the jury indicated that it was deadlocked, which makes this instruction less coercive. See id.Finally, we look at the subsequent length of jury d eliberations once the supplemental instruction has been given. There is a suggestion of coercion when a jury returns a verdict soon after the supplementa l instruction. Darks , 327 F.3d-31-

at 1016. In this case, the jury resumed deliberati ons after receiving the instruction at 4:00 p.m. Within the hour, the jury had sealed five verdicts in envelopes. The jury was then excused for the day a nd they reconvened the next morning. After approximately five to six hours of deliberation that day, they reached verdicts on the remaining counts. Because the verdict forms were dated, the record is clear that the verdicts the jury put into envelopes shortly after the instruction included complete acquittals for four o f the defendants, and a guilty verdict as to Mr. Verbickas on one count and acquittals on the remaining counts. The verdicts returned the following day convicted M r. LaVallee and Mr. Schultz of two counts each and acquitted them of the other counts. In this case, because the jury had not indicated that it was deadlocked a s to any of the defendants, it is reasonable to conclude that the jury had already re ached unanimous decisions as to the five verdicts sealed on June 23, even before the instruction was given—indeed, the jury had already deliberated for ten days at that point. In addition, it was almost a full day later that the j ury reached verdicts as to Messrs. Schultz and LaVallee. See Darks, 327 F.3d at 1016 (upholding verdict returned twenty minutes after the challenged instruction). After viewing the supplemental instruction in light of the totality of the circums tances, we conclude that it was not coercive and therefore did not deny the Appella nts their rights to a fair trial, an impartial jury, and a unanimous verdict.

b. Partial Verdict Instruction-32-

In trials with multiple defendants, Fed. R. Crim. P . 31(b) permits a jury to return a verdict at any time during its deliberatio ns as to any defendant about whom it has unanimously agreed. The Appellants arg ue that the supplemental instruction “ordering” the jurors to seal verdicts in envelopes improperly invaded the province of the jury regarding how it conducted deliberations. We review submission of supplemental jury instructions once the jury has retired for an abuse of discretion. United States v. Arias-Santos , 39 F.3d 1070, 1075 (10th Cir. 1994). The District Court, in giving its supplemental inst ruction, initially repeated the language of Instruction No. 29, but it then alt ered that language by ordering the jury to seal any unanimous verdicts it had alre ady reached. In other words, unlike Instruction No. 29, which afforded the jury discretion as to whether or not to return any partial verdicts, the supplemental in struction effectively removed that discretion by directing the jury to return any partial verdicts that had been reached at that point. Thus, the supplemental inst ruction clearly had the potential to infringe on the jury’s discretion to decide for itself what deliberative process to utilize and undoubtedly infringed on the jury’s dis cretion to decide when, if at all, to report a partial verdict. See United States v. DiLapi , 651 F.2d 140 (2d Cir. 1981) (discussing right of jury to return partial v erdict in multi-defendant trial). We therefore hold that giving such an instruction w as error. Nevertheless, we need not remand if we conclude that the error was h armless beyond a reasonable-33-

doubt. See Stiger , 413 F.3d at 1191 (potential error in verdict form did not warrant remand when any error did not affect the ou tcome of the trial). The Appellants argue that the partial verdict instr uction had the same effect

as an Allen instruction, i.e., improperly coercing the jury to reach a verdict as to the charges still being deliberated at the time the District Court gave the supplemental instruction. We concluded above that this instruction did not coerce the jury’s verdict. As such, we hold that the Dist rict Court’s error in giving the supplemental instruction was harmless beyond a reas onable doubt. C. Cumulative Error The Appellants argue that they were denied their du e process right to fundamental fairness through the combined effect of three discovery errors and thirteen errors in admitting testimony. A cumulati ve error analysis aggregates all the errors that individually are harmless, and ther efore not reversible, and “analyzes whether their cumulative effect on the ou tcome of the trial is such that collectively they can no longer be determined to be harmless.” United States v.
Rivera , 900 F.2d 1462, 1470 (10th Cir. 1990) (en banc). “Only actual errors are considered in determining whether the defendant’s r ight to a fair trial was violated.” United States v. Toles , 297 F.3d 959, 972 (10th Cir. 2002).
1. Discovery Rulings Ms. Gutierrez was one of the Government’s principal witnesses for both the conspiracy and assault charges. In March 2002, mor e than a year before trial12 The District Court also denied the motion because t he motion was

improperly filed under Fed. R. Crim. P. 17(c), rath er than the general discovery statute, Fed. R. Crim. P. 16. See Bowman Dairy Co. v. United States , 341 U.S. 214, 219 (1951) (stating that Rule 17(c) is not int ended to provide a means of discovery for criminal cases). -34- commenced, Mr. Verbickas filed a motion for the pro duction of Ms. Gutierrez’s psychiatric records to be used during cross-examination as impeachment evidence. The District Court denied the motion bec ause the documents requested were privileged and the defendants cited no relevan t authority to suggest that privileged documents were subject to discovery for purposes of crossexamination. 12The Appellants argue that this ruling violated th eir Sixth Amendment right to confront witnesses against them. See Delaware v. Fensterer , 474 U.S. 15, 18–19 (1985) (per curium) (stating that the right to confront a witness includes the right to conduct cross-examination). The Appellants have failed to provide this Court wi th any relevant authority suggesting that the Confrontation Clause permits th em to discover the privileged medical records of an adverse witness. Even so, we undertook our own review of the case law and find that the Appellants’s Sixth A mendment rights were not implicated by the District Court’s order. The Confrontation Clause is not a “constitutionallycompelled rule of pretrial discovery.” Pennsylvania v. Ritchie , 408 U.S. 39, 51 (1987). In rejecting the defendant’s claim that the trial court’s refusa l to permit discovery of-35-

privileged communications by his accuser to be usedduring cross-examination violated his right to confront witnesses against hi m, the Court in Ritchie stated: [T]he right to confrontation is atrialright, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination. The ability to q uestion adverse witnesses, however, does not include the power to r equire the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. Normally the right to confront one's accusers is satisfied if defense counsel rece ives wide latitude at trial to question witnesses. In short, the Confrontation Clause only guarantees an opportunity for effective cross-exami nation, not cross-examination that is effective in whatever way , and to whatever extent, the defense might wish. Id. (citations, quotation marks, and footnote omitted). There is no indication in this case that the Appellants did not have the oppo rtunity to cross-examine Ms. Gutierrez effectively. Indeed, the District Court did not appear to limit the scope of questions that the defendants could ask Ms. Guti errez on cross-examination. Thus, there has been no Sixth Amendment violation. The Appellants’ next claim of error in discovery re lates to alleged promises made by the Government to Ms. Gutierrez in exchange for her testimony at trial. Specifically, the Appellants point out that Ms. Gut ierrez pleaded guilty to violating 18 U.S.C. § 242, which the District Courtconsidered to be a “crime of violence.” Nevertheless, she was released pending sentencing, which is only permitted pursuant to 18 U.S.C. § 3143(a)(2) when the court “finds by clear and convincing evidence that the person is not likely t o flee or pose a danger to any other person or the community” and either “there is a substantial likelihood that a13 The Government correctly points out that the cases upon which the

Appellants rely, United States v. Brady , 373 U.S. 83 (1963) and Giglio , 405 U.S. 150, relate to the Government’s suppression of evid ence, not a district court’s erroneous evidentiary rulings. -36- motion for acquittal or new trial will be granted[, ] or an attorney for the Government has recommended that no sentence of impr isonment be imposed on the person.” 18 U.S.C. § 3143(a)(2); see also 18 U.S.C. § 3142(f)(1)(A) (including crimes of violence in subsection (A)). According to the Appellants, an off-the-record colloquy took place between Ms. Guti errez and her counsel, the magistrate judge, and the Government. The Appellan ts claim that the District Court made a discovery ruling prohibiting them fromdiscovering the substance of this conversation and that such ruling violated the ir due process rights under Giglio v. United States , 405 U.S. 150, 154 (1972). We decline to review this claim of error. In addit ion to failing to supply relevant legal authority, 13 the Appellants fail to cite to references in this ninetyvolume, ten-thousand-page transcript where this iss ue was raised and ruled upon below. See 10th Cir. R. 28.2(C)(2) and (3); United States v. LaHue , 261 F.3d 993, 1014–1015 (10th Cir. 2001). Due to these fail ures, this court cannot even attempt to assess the merits of this argument. Appellants next argue that the District Court erred in refusing to permit them to discover the substance of an interview by t he Government of Mr. Britt. Mr. Britt was twice interviewed by the Government p rior to giving testimony in-37-

this case. One interview was reduced to writing; t he other was not. After direct and cross-examination of Mr. Britt, counsel for Mr. Verbickas sought permission from the District Court to put Mr. Britt back on th e witness stand to determine whether a second statement was in fact recorded. T he District Court asked the Government whether there were any other written statements, to which Mr. Blumberg said no. The court then instructed the de fendants to file a written motion to recall Mr. Britt to the stand. There is nothing in the record indicating that any of the defendants filed such motion. Ther efore, any error appears to be that of the Appellants. Finally, the Appellants argue that the District Cou rt erred in refusing to allow Mr. Verbickas’s counsel to cross-examine Mr. Britt as to whether he knew of Mr. Lane’s history of violence. Mr. Britt testi fied on direct that Mr. Verbickas’s use of force against Mr. Lane was exces sive and contravened the BOP “Use of Force” policy. Counsel for Mr. Verbick as cross-examined Mr. Britt and asked him detailed questions about his knowledg e of Mr. Lane’s history of violence. After a while, the Government objected o n the grounds that Mr. Verbickas’s counsel was, in effect, testifying about Mr. Lane’s violent background. The District Court sustained the objec tion in part, permitting counsel to “ask the witness if he has any knowledge about why Lane was at [a medical facility], without your question revealing why he was there.” The court further stated, “I’m not foreclosing this evidence, but I’m foreclosing it through a-38-

witness that doesn’t know anything about it.” The Appellants argue that this prohibited the jury from evaluating the basis of Mr . Britt’s testimony that Mr. Verbickas’s use of force was excessive. We conclud e that this argument has no merit. The District Court did not prevent the Appe llants from asking about Mr. Britt’s foundation for his testimony.
2. Evidentiary Rulings The Appellants make several additional objections o n appeal that relate to Ms. Gutierrez’s testimony. First, they argue that the Government improperly asked her two leading questions. Only one of these questions was objected to, however, and the District Court sustained the objec tion before Ms. Gutierrez could answer the question. In addition, the Appel lants argue that the District Court erred in prohibiting testimony regarding a pu rported prior inconsistent statement made by Ms. Gutierrez. Specifically, the Appellants argue that after Ms. Gutierrez testified about inmate abuse at USP-F lorence, the court should have permitted them to call Lieutenant Mark Mooneyham to testify that Ms. Gutierrez had, in fact, previously told him that she had no k nowledge of inmate abuse at USP-Florence and that Mr. Blumberg threatened that she might lose custody of her children if she did not cooperate with the Gove rnment’s investigation. During her testimony, however, Ms. Gutierrez admitted thatshe had previously made that statement to Mr. Mooneyham. The District Court rul ed that Ms. Gutierrez’s testimony was consistent with what Mr. Mooneyham wo uld testify to and14 The Appellants also object to a question asked by M r. Blumberg on redirect examination as to whether Ms. Gutierrez had ever met Mr. LaVallee’s attorney in the presence of the defendants. We dis cuss this question infrain section IV and conclude that permitting the questio n did not constitute error. -39- therefore Fed. R. Evid. 613(b) did not apply. We f ind no error in any of these rulings. 14 Next, the Appellants argue that the Government impr operly elicited testimony that they had reputations for violent beh avior. They complain of the following colloquy between Mr. Blumberg and RaymondHolt, the warden at USP-Florence: Q: Did you obtain information—excuse me. Did you l earn the reputation of individuals or the character of being unnecessarily violent relating to certain correctional officers at Florence?
A: Yes. Q: Did you learn that reputation for a correctional officer named Rod Schultz?
A: Yes. [Mr. Schultz’s counsel objected and the objection w as overruled.] Q: Did you learn that reputation for a correctional officer named Mike LaVallee?
A: Yes. Q: Did you learn that reputation for a correctional officer named Ken Shatto?
A: Yes.-40-

Q: Did you learn that information related to a corr ectional officer named David Pruyne?
A: Yes. Q: Did you learn that information regarding a corre ctional officer named Robert Verbickas?
A: Yes.

. . . . Q: What was that reputation for those people that y ou learned prior to coming to Florence? The defendants objected to the last question and th e jury was excused while the court determined whether it would permit Mr. Ho lt to answer. Ultimately, the District Court barred admission of the reputation t estimony pursuant to Fed. R. Evid. 403. Appellants argue that Mr. Holt’s affirmative respon ses to the prosecutor’s initial questions is reputation testimony that viol ated Fed. R. Evid. 404(b). Rule 404(b), however, relates to evidence of other crime s, wrongs, or acts. In other words, it applies to specific instances of conduct. The challenged questions, on the other hand, refer to defendants’ reputations fo r violent behavior, not to any specific instances of conduct, and therefore Rule 404(b) is not implicated. We also question whether this testimony is reputation testimony at all. Mr. Holt merely testified that he had information about whet her each Appellant had a reputation for unnecessarily violent behavior; he d id not testify as to what that15 The Appellants also argue that this testimony was h earsay that violated

the Sixth Amendment’s Confrontation Clause. This argument is without merit, as it is clear that the testimony was not hearsay. -41- reputation was , i.e., that any Appellant had a violent or nonviol ent reputation. This question was necessary to establish foundationfor the follow-up question. Indeed, the court sustained the Appellants’ objecti on as to that question, and the jury never heard Mr. Holt’s answer. We therefore f ind no abuse of discretion in the admission of such testimony. 15 The Appellants raise nine other alleged errors in a dmitting testimony. For these claimed errors, they either fail to identify the statements which they contend were wrongly admitted, fail to meet this court’s mo dest requirement that an appellant provide citations to the record where the se statements might be found, or fail to provide argument or legal authority for these alleged errors. Due to these failures, we decline to assess the merits of these arguments. United States v. McClatchey , 217 F.3d 823, 825–26 (10th Cir. 2000). In sum, we have found no error in any of the Distri ct Court’s discovery and evidentiary rulings. We therefore conclude the App ellants’s assertion that the cumulative impact of errors deprived them of a fairtrial is without merit.

IV. ADDITIONAL ISSUES RAISED BY MR. LAVALLEE Mr. LaVallee argues that Mr. Blumberg engaged in se veral instances of prosecutorial misconduct that fatally infected his trial. During trial, Mr.-42-

Blumberg made several references to Mr. LaVallee’s attorney, Thomas Hammond. Mr. LaVallee argues that these references permitted the jury to draw an adverse inference from the fact he exercised his Sixth Amendment right to counsel and that therefore his conviction should be reversed. See United States v. Liddy , 509 F.2d 428, 442–445 (D.C. Cir. 1974). Allegations of prosecutorial misconduct are mixed q uestions of law and fact which we review de novo. Duckett v. Mullin , 306 F.3d 982, 988 (10th Cir. 2002). When the defendant makes a timely motion fo r a mistrial based on prosecutorial misconduct, we review the district co urt’s decision for an abuse of discretion. United States v. Meienberg , 263 F.3d 1177, 1180 (10th Cir. 2001). We will not reverse a conviction on the basis of a prosecutor’s improper statement to the jury unless there is reason to bel ieve that it influenced the jury’s verdict. Meienberg , 263 F.3d at 1180. In assessing whether the misco nduct had such an impact, we look to the curative acts of the district court, the extent of the misconduct, and the role of the misconduct within t he case as a whole. Id. Mr. Blumberg first made reference to Mr. Hammond du ring redirect examination of Ms. Gutierrez. During the exchange, Mr. Blumberg elicited testimony from her that she had previously met Mr. Hammond at a meeting in the company of the other defendants. Mr. Hammond objec ted, and the judge held a sidebar conference. During the conference, Mr. Blu mberg proffered that Ms. Gutierrez would testify that after the meeting, certain defendants had a discussion16 Mr. Blumberg reasoned that such testimony was relev ant to whether the

defendants had willfully deprived the inmates of a constitutional right under 18 U.S.C. § 242. -43- about not telling their attorneys the truth about t he beatings. 16The District Court excused the jury, and Mr. Blumberg questioned Ms. G utierrez on the issue. After her testimony, the District Court found that Mr. Bl umberg’s proffer at the sidebar was contrary to what Ms. Gutierrez had just testifi ed. The court therefore disallowed the testimony to be relayed to the jury and sanctioned the Government by prohibiting it from eliciting evidence about a c onversation that Ms. Gutierrez had with Mr. Schultz in which he told her not to te ll her lawyer the truth about what went on in the prison. The court, however, de nied Mr. Hammond’s motion for a mistrial based on the testimony Mr. Blumberg had succeeded in eliciting in front of the jury—namely, that there had been a mee ting among some defendants and Mr. Hammond—because it found that testimony adm issible since six of the seven defense attorneys had asked Ms. Gutierrez on cross-examination whether she had ever met with them before. Even so, when r edirect examination resumed, the District Court gave the jury a cautionary instr uction to disregard any testimony it had heard about that meeting. We conc lude that because the jury only heard unobjectionable testimony and was, in any event, instructed not to consider it, the District Court did not abuse its d iscretion in denying Mr. Hammond’s motion for a mistrial.17Mr. Blumberg also asked whether it was Mr. LaVallee ’s belief that Ms.

Gutierrez’s lawyer had coordinated witness’s testim ony. This reference to Ms. Gutierrez’s attorney did not involve any adverse in ference drawn from Mr. LaVallee’s invocation of his right to counsel and w e therefore do not address it here. -44- Mr. Blumberg again made reference to Mr. Hammond du ring crossexamination of Mr. LaVallee. Mr. Blumberg asked wh ether Mr. LaVallee knew that several murders took place at USP-Florence whi le he worked there, to which Mr. LaVallee responded that he had no personal know ledge of such murders. Mr. Blumberg asked, “Was that because you didn’t prepar e for that [question] with Mr. Hammond?” Mr. Hammond objected, arguing that the question was improper, but he did not move for a mistrial. The District Court overruled the objection. Mr. Blumberg later commented that defe nse counsel were “peddling” defenses. Two attorneys objected to the question b ased on its characterization and that it was argumentative. No defendant moved for a mistrial. 17 We need not tarry on whether these remarks constituted prosecutorial misconduct because we are satisfied that they did n ot affect the trial’s outcome. These two flippant remarks must be evaluated in the context of an eight-week trial. This conduct, even if improper, was not “fla grant enough to influence the jury to convict on grounds other than the evidence presented.” See Meienberg , 263 F.3d at 1180 (quotations omitted). As such, we conclude that any misconduct was harmless beyond a reasonable doubt.18 For instance, the witnesses had differing recollect ions about what the

abused inmate was wearing at the time of the abuse and the relative positions of the other correctional officers in the cell. -45- V. ADDITIONAL ISSUES RAISED BY MR. SCHULTZ A. Sufficiency of the Evidence Mr. Schultz argues that the Government lacked suffi cient evidence to support his conviction for deprivation of rights un der color of law because the testimony of Ms. Gutierrez and Mr. Mitchell was contradictory in several respects. 18 Claims of insufficiency of the evidence are revie wed de novo. United States v. Pulido-Jacobo , 377 F.3d 1124, 1129 (10th Cir. 2004). “Evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the government, a reasonable jury coul d have found the defendant guilty beyond a reasonable doubt.” United States v. Hien Van Tieu , 279 F.3d 917, 921 (10th Cir. 2002). Mr. Schultz does not dispute that the witnesses, de spite their disparate recollection of non-material details, provided test imony which, if believed, satisfied each element of the crimes for which he w as convicted. Essentially, then, Mr. Schultz’s argument amounts to an attack o n Ms. Gutierrez’s and Mr. Mitchell’s credibility. This argument must be reje cted. “To the extent that the evidence conflicts, we accept the jury’s resolution of conflicting evidence and its assessment of the credibility of witnesses.” United States v. Owens , 70 F.3d-46-

1118, 1126 (10th Cir. 1995) (quotations omitted); see also United States v. Washita Constr. Co. , 789 F.2d 809, 816–17 (10th Cir. 1986) (rejecting sufficiency of the evidence argument based on inconsistencies i n testimony of government witnesses). B. Motion for a New Trial
1. Violations Under Brady v. Maryland and California v. Trombetta Bureau of Prisons policy requires correctional offi cers routinely to videotape any calculated use of force on an inmate. The warden reviews the videotapes to ensure that the officers follow the appropriate procedures during the use of force. The tapes are retained for up to two years and then destroyed in the ordinary course of business. If an incident is ser ious and has been referred for possible criminal investigation, the tape might be retained, placed into evidence, and controlled more closely. Beginning in July 2001, the defendants made several requests for the tapes created on April 5 and 6, 1996 during forced-cell m oves of Pedro Castillo, the inmate whom Mr. LaVallee and Mr. Schultz were convi cted of abusing. After each request, the BOP responded that the tapes no l onger existed. Mr. Schultz made one last request for the tapes shortly before his sentencing. This time, the Government responded to the request by producing th e tape created on April 6, 1996, the day after the incident giving rise to Mr. Schultz’s and Mr. LaVallee’s convictions.19 The “prosecution” for Brady purposes encompasses not only the

prosecutors handling the case, but also extends to law enforcement personnel and governmental entities involved in investigative asp ects of a particular criminal venture. Smith v. Sec’y of N.M. Dept. of Corrs. , 50 F.3d 801, 824 (10th Cir. 1995). -47- The tape shows Mr. Castillo slashing at his chest and legs, attempting to draw blood. Mr. Schultz approaches the cell and in structs Mr. Castillo to put his hands through the food gate so that he can be handc uffed. Mr. Castillo complies and Mr. Schultz enters the cell to fasten a chain a round Mr. Castillo’s waist. Mr. Schultz then escorts Mr. Castillo to the x-ray roomwithout incident. Mr. Schultz moved for a new trial, arguing that the Government suppressed favorable and material evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). When the Government withholds evidence on demand of a defendant which, if made available, would tend to exculpate h im, it violates the due process rights of that defendant. Brady , 373 U.S. at 87. The Government’s good faith is not relevant. Id. While we ordinarily review a district court’s denia l of a motion for a new trial for an abuse of discretion, when th e motion is based on an alleged Brady violation, we review the district court’s decision de novo. See United States v. Combs , 267 F.3d 1167, 1172 (10th Cir. 2001). To establi sh a Brady violation, “a defendant must demonstrate (1) the pr osecution suppressed evidence,[ 19 ] (2) the evidence was favorable to defendant, and (3) the evidence was material.” United States v. Quintanilla , 193 F.3d 1139, 1149 (10th Cir.-48-

1999). There is no dispute in this case that the p rosecution suppressed evidence within the meaning of Brady . We therefore concentrate our analysis on the remaining two factors. Evidence is favorable to the defendant if it consti tutes either exculpatory or impeachment evidence. Smith v. Sec’y of N.M. Dept. of Corrs. , 50 F.3d 801, 825 (10th Cir. 1995). Mr. Schultz argues that the evid ence is favorable to him because it shows Mr. Castillo cutting at his chest and legs to draw blood. According to Mr. Schultz, this casts doubt on the G overnment’s theory of the case—that the defendants fabricated a reason to mov e Mr. Castillo from his cell to beat him—and supports his defense that Mr. Casti llo was in fact trying to injure himself the previous day. He also argues th at it is favorable because it shows Mr. Schultz and Mr. Castillo interacting with out incident. The Government counters that this tape does not rebut their theory of the case—inmate Castillo was a known self-mutilator andthe Government’s theory was that the defendants falsely claimed that he had been cutting himself on April 5 precisely because it was a plausible explanation for entering his cell. In this regard, the tape is consistent with the Government’ s evidence. We need not conclusively resolve whether this evidence was favo rable to Mr. Schultz, however, because we find that it was not material t o his guilt. Evidence is material to the defendant if it creates a “reasonable probability that, ‘had the evidence been disclosed to the defen se, the result of the proceeding-49-

would have been different.’” Scott v. Mullin , 303 F.3d 1222, 1230 (10th Cir. 2002) (quoting United States v. Bagley , 473 U.S. 667, 682 (1985)). “A ‘reasonable probability’ is a ‘probability sufficie nt to undermine confidence in the
outcome.’” Id. (quoting Strickland v. Washington , 466 U.S. 668, 694 (1984)). Mr. Schultz argues that there is a reasonable proba bility that had the videotape been disclosed he would have been acquitted because it defies common sense to believe that Mr. Castillo would cooperate with Mr. Schultz if Mr. Schultz had abused him the previous day. To the contrary, the District Court found, and we a gree, that the videotape is consistent with the fact that Mr. Castillo was b eaten the previous day and does not cast sufficient doubt on the fact that Mr. Schu ltz participated in that abuse. The Government presented evidence at trial that on April 5 Mr. Castillo was beaten in the kidney area. The video shows Mr. Cas tillo’s abdomen wrapped in bandages consistent with the area of beating. Furt her, the video shows Mr. Castillo moving somewhat gingerly, which is also co nsistent with testimony that he was abused the previous day. That the video sho ws Mr. Schultz and Mr. Castillo interacting without incident does not unde rmine our confidence in the outcome of the trial. As the District Court noted, “[i]t is a fact of life that in a prison setting, prisoners are forced to interact ona daily basis with the correctional officers, even those officers that may have mistreated or abused the prisoners.” The tape merely shows Mr. Castillo coo perating with the officers the-50-

day after the assault and as such, it has little bearin g on what occurred the previous day. Cf. Engberg v. Wyoming , 265 F.3d 1109, 1118 (10th Cir. 2001) (evidence that creates a mere “possibility” of a different result does not meet the standard for “reasonable probability”). We therefo re hold that the evidence was not material and, as such, Mr. Schultz’s due proces s rights were not violated. Mr. Schultz also argues that the Government’s destruction of the April 5, 1996 videotape violated his due process rights and warrants a new trial under California v. Trombetta , 467 U.S. 479 (1984). Mr. Schultz did not raise t his issue to the District Court. Accordingly, we review the District Court’s failure sua sponte to realize that the destruction warranted a new trial only for plain error. Fed. R. Crim. P. 52(b); United States v. McDonald, 933 F.2d 1519, 1524 (10th Cir. 1991). For the government’s destruction of evidence “to ri se to the level of affecting a defendant’s due process rights under California v. Trombetta , the evidence ‘must both possess an exculpatory value th at was apparent before the evidence was destroyed, and be of a nature that the defendant would be unable to obtain it by other reasonably available means.’” United States v. Pearl , 324 F.3d 1210, 1215 (10th Cir. 2003) (quoting Trombetta , 467 U.S. at 489)). In addition, the defendant must show that the government acted i n bad faith. Id. (citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)). Even if Mr. Schultz could show that the exculpatoryvalue of the video was-51-

apparent before the video was destroyed, he fails t o show that the tape was destroyed in bad faith. He argues that the failure of the Government to preserve the tape undermines the only reason the tape was cr eated in the first place and it was therefore done in bad faith. To the contrary, there is unrebutted testimony that these tapes, used to ensure that the correctio nal officers used the proper procedures during forced-cell moves, were routinelydestroyed in the ordinary course of business approximately two years after th eir creation. Mr. Schultz notes that the Government first became aware that M r. Castillo was beaten when it spoke with Ms. Gutierrez in February 2000, nearl y four years after the incident. When the defendants made their first request for th e video in 2001, it had already been destroyed. Therefore, Mr. Schultz has failed to establish the District Court plainly erred in not granting a new trial on its ow n initiative due to the Government’s bad-faith destruction of exculpatory e vidence.
2. Newly discovered evidence During the investigation that led to Mr. Schultz’s indictment, FBI investigators questioned Mr. Castillo. Mr. Castill o told the investigators that he was beaten by several correctional officers around the first of April 1996. Though he could not recall all of the officers’ nam es who participated in the abuse, he did state that all the officers who took part in the forced-cell move committed the abuse. He did not identify Mr. Schul tz by name. Since Mr. Schultz was on duty that night, however, the Govern ment began investigating20 We note, however, that Mr. Castillo’s testimony is hardly conclusive of

the issue. Mr. Castillo provided several inconsist ent statements regarding Mr. Schultz’s participation in the abuse. For example, he stated he believed Mr. Schultz did not participate in the beating because Mr. Castillo “was sure [Mr. Schultz] had not been on duty or present” that nigh t. After being presented with information that Mr. Schultz admitted not only to b eing present, but also to participating in the forced-cell move, Mr. Castillo acknowledged that his memory of the events seven years earlier was vague and that he could not positively state whether Mr. Schultz took part in the abuse. -52- him. Several of Mr. Schultz’s coconspirators ident ified him as a participant. In February 2001, the Government filed a superceding i ndictment against Mr. Schultz for the abuse of Mr. Castillo. He was trie d and convicted over two years later in June 2003. Mr. Castillo was incarcerated until May 2002. Duri ng this time, Mr. Schultz never attempted to interview Mr. Castillo a bout his allegations of abuse. Nor did Mr. Schultz attempt to locate Mr. Castillo after his release but prior to trial. Mr. Castillo was not a witness at trial. A fter Mr. Schultz was sentenced to 41 months’ imprisonment in November 2003, however, he employed a private investigator to locate Mr. Castillo; the investigat or found Mr. Castillo within six weeks. After finding him, the investigator showed Mr. Castillo a photo of Mr. Schultz and asked whether Mr. Schultz ever beat him . Mr. Castillo responded that Mr. Schultz had not done so and that, in fact, Mr. Schultz had treated him with dignity and respect. 20Mr. Schultz filed a motion for a new trial, which the District Court denied.-53-

Federal Rule of Criminal Procedure 33 authorizes a district court to grant a new trial if the interests of justice require one. United States v. Quintanilla , 193 F.3d 1139, 1146 (10th Cir. 1999). We review ruling s on a motion under Rule 33 for an abuse of discretion. Id. We apply a five-part test to determine whether newly discovered evidence warrants a new trial. Id. at 1147. The defendant must show: (1) the evidence was discovered after trial, (2) th e failure to learn of the evidence was not caused by [his] own lack of di ligence, (3) the new evidence is not merely impeaching, (4) the new evidence is material to the principal issues involved, and (5) the new evidence is of such a nature that in a new trial it would proba bly produce an acquittal. Id. The District Court denied Mr. Schultz’s motion for several reasons. First, the court found that Mr. Schultz did not use due di ligence in attempting to locate Mr. Castillo before trial. Second, the court deter mined that Mr. Castillo’s statements constituted only impeachment evidence be cause previous statements he had made to the FBI were inconsistent with his curr ent statements. Last, the District Court concluded that there was not a reaso nable probability that the evidence would result in an acquittal if Mr. Schult z was to be given a new trial. Because we agree that Mr. Schultz failed to exercis e due diligence in discovering the evidence before trial, we need not address whet her Mr. Castillo’s testimony is merely impeaching or whether there is a reasonable probability that it would-54-

result in an acquittal. Due diligence does not require that a defendant exe rcise the highest degree of diligence possible to locate evidence prior to t rial; only “reasonable diligence” is required. United States v. Allen , 554 F.2d 398, 403 (10th Cir. 1977). This requirement prevents defendants from keeping “an ev identiary trump card in the event of a conviction.” Quintanilla , 193 F.3d at 1147. Mr. Schultz does not dispute that he made no attempt to interview Mr. Ca stillo before trial. Nor can he argue that he was unable to interview Mr. Castillo before trial, as Mr. Castillo was incarcerated for a full fifteen months after th e Government filed the superceding indictment against Mr. Schultz. Rather , he contends that the standard for diligence should be lowered because the Governm ent produced misleading reports that indicated Mr. Castillo had identified him as one of the abusers. As support for this proposition he cites our decision in United States v. Sinclair , 109 F.3d 1527, 1532 (10th Cir. 1997) in which we refuse d to apply the Seventh Circuit’s lower standard for evaluating the fifth p rong of the test—that is, when newly discovered evidence would likely produce an a cquittal after a subsequent trial. We stated: [W]e are unwilling to apply the Larrison possibility standard when, as here, the allegedly false testimony is merely impeaching. We recognize that the possibility standard applied in Larrison and subsequent cases might be appropriate when the gove rnment has knowingly, recklessly, or negligently offered false testimony. However, Mr. Sinclair has not alleged, nor does the record show, that the government knowingly, recklessly, or negligentl y used Dallas21 We note that Mr. Schultz’s argument on this basis c uts against his (continued...) -55- Woods’s testimony about his school attendance. We therefore conclude that the Larrison possibility standard should not be applied under the circumstances in this case. Id. at 1532 (citing Larrison v. United States , 24 F.2d 82 (7th Cir.1928)). Mr. Schultz argues that the Government knowingly, r ecklessly, or negligently offered misleading documents and that s uch conduct should lessen his due diligence requirement. We decline to adopt suc h an approach. The requirement of “reasonable diligence” adequately ac counts for any misconduct by the Government. Moreover, the reports from the int erviews of Mr. Castillo do not falsely claim that Mr. Castillo identified Mr. Schu ltz personally. They merely state that Mr. Castillo alleged that he was beaten by all the officers who participated in the forced-cell move—and Mr. Schult z admits that he participated in that process. We therefore find no abuse of dis cretion on the part of the District Court in denying Mr. Schultz’s motion for a new trial.
3. Prosecutorial Misconduct Last, Mr. Schultz argues that the prosecution, know ing that the April 5, 1996 videotape of Mr. Castillo’s forced-cell move w as destroyed in the ordinary course of business, misrepresented to the jury thatthe defendants destroyed the tape as part of their conspiracy to deprive Mr. Cas tillo of his constitutional rights. 2121 (...continued)

argument that the Government destroyed the tape in bad faith in violation of his due process rights under Trombetta. -56- It does appear that part of the Government’s pre-tr ial theory of the case was that the conspirators destroyed the tape to cover up any evidence of abuse. At trial, however, the only statement that Mr. Schultz complains of with respect to the defendants’ alleged destruction of the tape cam e in closing argument when Mr. Blumberg said that “the removal of the video camera was a fake.” (emphasis added). This statement in no way indicates that Mr . Schultz destroyed the tape inside the camera. Rather, it references Mr. Schul tz’s role in the conspiracy—his job was to knock over the video camera so that it w ould not record the ensuing abuse. Because Mr. Blumberg did not argue before t he jury that the defendants destroyed this evidence to cover up their crime, Mr . Schultz’s argument is simply without merit.
VI. SENTENCING We now turn to issues concerning the Appellants’ se ntences. Mr. Verbickas was found guilty of a single count of dep rivation of civil rights in violation of 18 U.S.C. § 242. The base offense lev el for a conviction under § 242 is governed by U.S.S.G. § 2H1.1, “Offenses Involvin g Individual Rights,” which directs the court to apply the greatest offense lev el of: (1) the offense level from the offense guidelines applicable to any underlying offense;-57-

(2) 12, if the offense involved two or more partici pants; (3) 10, if the offense involved (A) the use of threat of force against a person or (B) damages or the threat of property damages; or (4) 6, otherwise. U.S.S.G. § 2H1.1(a). The District Court calculated Mr. Verbickas’s base offense level at 12 because it concluded that the offense i nvolved two or more participants. See U.S.S.G. § 2H1.1(a)(2). It then imposed a six-leve l enhancement because the offense was committed undercolor of law, see U.S.S.G. § 2H1.1(b)(1); a two-level enhancement because Mr. Lane was a vulnerable victim, see U.S.S.G. § 3A1.1(b)(1); and a two-level enhancementbecause Mr. Lane was restrained during the assault, see U.S.S.G. § 3A1.3. The resulting base offense level was 22. The District Court then depa rted downward two levels because it determined that Mr. Verbickas was especi ally susceptible to abuse in prison. See U.S.S.G. § 5K2.0 (permitting downward departures fo r circumstances not adequately taken into consideration by the Guid elines). The court further departed another two levels because it found both t hat the assault was aberrant behavior, see U.S.S.G. § 5K2.20, and that Mr. Lane’s misconduct s ubstantially contributed to provoking the assault, see U.S.S.G. § 5K2.10. The resulting offense level was 18, and Mr. Verbickas had a crimi nal history score of I, which subjected him to a sentence of 27–33 months’ impris onment. The District Court sentenced him to 30 months. Mr. Verbickas challeng es each of the sentencing enhancements except for the under color of law enha ncement under United States-58-

v. Booker , arguing that his offense level before the court’s downward departure should only have been 16, see U.S.S.G. §§ 2H1.1(a)(3) and (b)(1), with a resulting sentencing range of only 21–27 months. Messrs. LaVallee and Schultz were found guilty bothof conspiracy under 18 U.S.C. § 241 as well as a substantive offense un der 18 U.S.C. § 242 for the assault of Mr. Castillo. Because both offenses wer e committed by two or more people, the District Court determined the base leve l for both men to be 12. See U.S.S.G. § 2H1.1(a)(2). As it had with Mr. Verbick as, the District Court applied a six-level enhancement for acting under color of l aw, see U.S.S.G. § 2H1.1(b)(1); a two-level enhancement for a vulner able victim, see U.S.S.G. § 3A1.(b)(1); and a two-level enhancement for commi tting the offense while the victim was restrained, see U.S.S.G. § 3A1.3. Because the Guidelines prohibit the grouping of conspiracy and substantive offenses whe n the conspiracy has another object besides the substantive offense, see U.S.S.G. § 3D1.2 cmt. 4, the District Court added another two levels under U.S.S.G. § 3D1 .4(a) (requiring the addition of two levels for offenses constituting two equallyserious groups). The court then granted a two-level departure for susceptibili ty to abuse in prison. See U.S.S.G § 5K2.0. With a resulting offense level of 22 and a criminal history score of I, the applicable Guidelines range was 41– 51 months’ incarceration. Messrs. LaVallee and Schultz were both sentenced to 41 months. Both contend that the District Court committed error under Bookerwhich resulted in the-59-

imposition of a higher sentence than that warranted by facts found by the jury. A. BookerError
In Booker , the Supreme Court held that the Sixth Amendment r equires that “[a]ny fact (other than a prior conviction) which i s necessary to support a sentence exceeding the maximum authorized by the fa cts established by a plea of guilty or a jury verdict must be admitted by the de fendant or proved to a jury beyond a reasonable doubt.” Booker , 125 S. Ct. at 756. As a remedy, the Court severed the statutory section requiring district co urts to sentence within the Guidelines range. Id. at 756–57. We recognize two types of Bookererrors: constitutional and non-constitutional. United States v. Gonzalez-Huerta , 403 F.3d 727, 731 (10th Cir. 2005). A constitutional Bookererror occurs when a court “[relies] upon judge-found facts, other than those of prior convictions, to enhance a defendant’s sentence mandatorily.” Id. A non-constitutional error arises when a sentencing court “appl[ies] the Guidelines in a m andatory fashion, as opposed to a discretionary fashion, even though the resulting sentence was calculated solely upon facts that were admitted by the defendant, fou nd by the jury, or based upon the fact of a prior conviction.” Id. at 731–32. These appeals allege constitutional Booker error. Because all three Appellants challenge such error f or the first time on appeal, we review for plain error. Fed. R. Crim. P . 52(b); Gonzalez-Huerta , 403 F.3d at 732. To establish plain error, the Appella nts “must demonstrate that (1)-60-

the District Court committed error, (2) that the er ror was plain, and (3) that the plain error affected [their] substantial rights. United States v. Dazey , 403 F.3d 1147, 1174 (10th Cir. 2005). If each condition is met, “a court reviewing the error may exercise discretion to correct it if the error seriously affects the fairness, integrity, or public reputation of judici al proceedings.” Id. When reviewing a potential constitutional error, we cond uct this analysis less rigidly. Id. “By now, it is axiomatic under plain error review t hat a court commits error that is plain when it enhances a defendant’s senten ce based on judicially-found facts.” United States v. Taylor , 413 F.3d 1146, 1155 (10th Cir. 2005). We will therefore limit our review to the third and fourth prongs of the plain error test. To satisfy their burden on the third prong of plain error, the Appellants must establish that their substantial rights were a ffected—that is, they must show to a “reasonable probability” that the error in sen tencing affected the outcome of the proceedings. Dazey , 403 F.3d at 1175. We have identified at least tw o ways a defendant can make this showing in the case of co nstitutional Booker error: First, if the defendant shows a reasonable probabil ity that a jury applying a reasonable doubt standard would not have found the same material facts that a judge found by a preponderanc e of the evidence, then the defendant successfully demonstrates that t he error below affected his substantial rights. . . . Second, a d efendant may show that the district court’s error affected his substa ntial rights by demonstrating a reasonable probability that, under the specific facts of his case as analyzed under the sentencing factor s of 18 U.S.C. § 3553(a) the district court judge would reasonably i mpose a sentence outside the Guidelines range.22 For example, Mr. Verbickas argued that if the Distr ict Court imposed one

of the enhancements, it should not impose the otherbecause it would constitute (continued...) -61- Id. (footnote omitted). If the Appellants satisfy the first three prongs of plain error review, they must then persuade this Court that the error seriou sly affects the fairness, integrity, or public reputation of judicial proceed ings. We have stated that a defendant can meet this burden by presenting eviden ce that: (a) a sentence increased substantially based on a Bookererror; (b) a showing that the district court would likely impose a significantly lighter sentence on remand; (c) a substantial lack of evidence to support the entire sentence the Guidelines requiredthe district court to impose; (d) a showing that objective considerati on of the § 3553(a) factors warrants a departure from the sente nce suggested by the Guidelines; or (e) other evidence peculiar to t he defendant that demonstrates a complete breakdown in the sentencing process. United States v. Serrata , 425 F.3d 886, 919 (10th Cir. 2005).
1. Mr. Verbickas’s Sentence Mr. Verbickas has failed to satisfy the third prong of establishing plain error. First, he has failed to show that a jury ap plying a reasonable doubt standard would not have found the same material fac ts. Indeed, Mr. Verbickas did not challenge the factual basis of any of the e nhancements at the District Court (and does not do so here). Rather, with resp ect to the enhancements based on the condition of the victim (restrained and vuln erable), Mr. Verbickas’s contentions were legal claims. 22 Cf. United States v. Riccardi , 405 F.3d 852, 87622 (...continued)

impermissible “double counting,” which he does not raise here. -62- (10th Cir. 2005) (in harmless error analysis, stati ng that defendant’s decision not to contest the facts supporting an enhancement indi cates that constitutional Bookererror did not affect substantial rights). Moreove r, the record is replete with testimony that Mr. Lane was in fact restrained and that he was in fact “vulnerable” within the meaning of the Guideline pr ovision. See U.S.S.G. § 3A1.1; United States v. Lambright , 320 F.3d 517, 518 (5th Cir. 2003) (inmate who was completely dependent on correctional office rs for care, was locked in cell, and was unable to protect himself from assaul t was vulnerable victim); United States v. Hershkowitz , 968 F.2d 1503, 1504–06 (2d Cir. 1992) (inmate beaten while surrounded by correctional officers wa s vulnerable victim). With respect to the enhancement based on the offense inv olving two or more participants, the record shows that Ms. Gutierrez p leaded guilty to abusing Mr. Lane. Finally, it is clear from the jury’s verdictthat it found Mr. Verbickas was acting under color of law. Indeed, a finding that the defendant acted under color of law in depriving an inmate of a constitutional r ight was explicitly listed as an element of § 242 in the jury instructions. Accordi ngly, Mr. Verbickas has in no way demonstrated that a jury applying a reasonable doubt standard would not have found the same facts as the District Court whi ch gave rise to the enhancements.-63-

Second, Mr. Verbickas has failed to show that the D istrict Court, applying the sentencing factors in § 3553(a), might have imp osed a sentence outside the Guidelines range. The judge did not express any di ssatisfaction with the length of the sentence or indicate that he felt that it was i nappropriate in light of all the circumstances. See Dazey , 403 F.3d at 1175. Further, the District Court imposed a sentence in the middle of the applicable Guidelin es range, even though it was within the court’s power to impose a shorter senten ce under the pre- Booker scheme. That it was not inclined to do so suggests that the judge would not exercise “his now greater [post- Booker ] discretion to reduce the sentence.” United States v. Riccardi , 405 F.3d 852, 876 (10th Cir. 2005). We are aware that this Court recently found that co nstitutional Booker error affected a defendant’s substantial rights even thou gh the district court had granted a five-level downward departure that took into cons ideration several of the sentencing factors recommended by § 3553(a)(1). See Serrata , 425 F.3d at 918. Though the District Court in this case took several of the § 3553(a)(1) sentencing factors into account in granting Mr. Verbickas a tw o-level downward departure, we think that Serratais distinguishable for several reasons. First, in Serratawe found that “the most telling evidence” that the def endant’s substantial rights were violated was that the district court “repeatedly expressed its dissatisfaction with the guidelines” and stated that it would sentence e ach defendant to probation if the Guidelines so permitted. Id. at 919. Second, the district court sentenced each23 We also note that because the court in Serrata held that the district court

abused its discretion in imposing a five-level down ward departure thus requiring remand, the court’s discussion of Booker error is dicta. See United States v. Sims , 428 F.3d 945, 966 (10th Cir. 2005) (declining to ad dress Bookerissues when district court abused its discretion in departing d ownward). -64- defendant to the lowest possible sentence in the ap plicable Guidelines range. Id. Third, this Court found that the district court abu sed its discretion in departing downward—we acknowledged that although departure wa s not warranted under the Guidelines, post -Booker , the same factors may warrant departure pursuant t o § 3553(a)(1). 23 Id.; cf. United States v. Ollson , 413 F.3d 1119, 1121 (10th Cir. 2005) (finding that defendant’s substantial rights not violated when district court properly exercised discretion to depart downward an d could have departed further if it determined further departure was warranted). None of these circumstances are present in this case. We therefore conclude th at Mr. Verbickas has failed to establish that but for the improper judicial fact-f inding, the result of his proceeding would have been different.
2. Mr. LaVallee’s and Mr. Schultz’s Sentences As noted above, the enhancement for acting under co lor of law, see U.S.S.G. § 2H1.1(b)(1), is fully reflected in the j ury’s verdict. The same can be said of the enhancement under U.S.S.G. § 2H1.1(a)(2 ) (offense committed by two or more people) because both Mr. LaVallee and Mr. S chultz were convicted of conspiracy under 18 U.S.C. § 241, which requires “two or more persons” as an-65-

element of the offense. Accordingly, these enhance ments do not constitute constitutional Booker error. In addition, the facts giving rise to the two-level enhancement under U.S.S.G. § 3D1.4(a), which is predicated on a findi ng that the substantive offense was not “the sole object of the conspiracy,” see U.S.S.G. § 3D1.2 cmt. 4, are also implicit in the jury’s verdict. The jury instructi ons provided that the jury must find beyond a reasonable doubt that the Government proved “that the single overall conspiracy alleged in Count I of the superc eding indictment existed.” The superceding indictment alleged that the defendants engaged in a conspiracy to (1) unjustifiably strike, kick, assault, injure, and physically punish inmates; (2) falsely justify uses of force against inmates by fa lsifying records and fabricating injuries; (3) threaten officers to secure their sil ence; and (4) perpetuate an environment within the prison allowing unlawful beatings and assaults against inmates to continue indefinitely and with impunity. Clearly, then, the jury’s guilty verdict against Mr. LaVallee and Mr. Schultz on the conspiracy charge reflects the fact that the Government proved beyond a reasonable doubt that the beating of Mr. Castillo was not the sole object of the conspiracy. Therefore, this enhancement is also not constitutional Booker error. Accordingly, only the other two enhancements—one tw o-level enhancement for a vulnerable victim and another two -level enhancement for a restrained victim—potentially violate Booker . Without these enhancements, the-66-

sentencing range supported by the jury’s findings w as 33–41 months’ imprisonment, based on an offense level of 20 rathe r than 24. The District Court exercised its discretion to depart downward two lev els from 24 to 22, however, and thus calculated the applicable sentencing range to be 41–51 months; the court ultimately sentenced both Mr. LaVallee and Mr. Schu ltz to 41 months. We stated
in United States v. Yazzie that: Booker made clear that it is the actual sentence, not the sentencing range, that must not be increased based upon judge- found facts in order to violate the Sixth Amendment: “Accordingly, we reaffirm our holding in Apprendi : Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of gu ilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” 407 F.3d 1139, 1144 (10th Cir. 2005) (quoting Booker , 125 S. Ct. at 756). Because the District Court’s judicial fact-finding did not increase the sentence beyond that authorized by the jury’s verdict, there was no constitutional error. Id .; see also United States v. Small , 423 F.3d 1164, 1188 (10th Cir. 2005). Nevertheless, it is clear on appeal that the Distri ct Court’s mandatory application of the Guidelines still constitutes non -constitutional Booker error that is plain. We need not decide whether Messrs. LaVal lee’s and Schultz’s substantial rights were affected, however, because they have failed to satisfy their burden on the fourth prong of plain error analysis. See Yazzie , 407 F.3d at 1146 (declining to conduct a substantial-rights analysis because defendant could not-67-

satisfy the fourth prong of plain-error review). W e will not notice nonconstitutional error “unless it is both particularl y egregious and our failure to notice the error would result in a miscarriage of j ustice.” Id. The Appellants have made no such showing here. B. Cross-Appeal It its cross-appeal, the Government raises three ar guments. First, it argues that the District Court erred in failing to impose an enhancement to each Appellant’s sentence for obstruction of justice. S econd, it argues that the District Court erred in granting the Appellants a two-level downward departure due to their susceptibility to abuse in prison. Third, itargues that the District Court erred in granting Mr. Verbickas an additional two-l evel downward departure due to the inmate’s provocation of the offense behaviorand Mr. Verbickas’s aberrant behavior.
Post -Booker, district courts, though not bound by the Guideline s, must consult the Guidelines and consider them in sentenc ing. See Booker , 125 S. Ct. 738, 767 (2005). This consultation requirement normally obliges the district court to calculate correctly the sentencing range p rescribed by the Guidelines. See United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.2005); United States v. Sierra-Castillo , 405 F.3d 932, 936 n.2 (10th Cir. 2005). In consi dering the district court’s application of the Guidelines, we review its factual findings for clear error, and its legal determinations de no vo. Serrata , 425 F.3d at 906.-68-

“We give due deference to the district court’s appl ication of the guidelines to the facts.” Id. (quotation omitted). The Government first argues that the District Courterred in failing to apply an obstruction of justice enhancement to each of th eir sentences pursuant to U.S.S.G. § 3C1.1. As an initial matter, we recogni ze that if the District Court had applied the obstruction of justice enhancement to i ncrease the Appellants’ sentences mandatorily, it would have committed cons titutional Booker error. See United States v. Corchado , 427 F.3d 815, 821 (10th Cir. 2005). Bookermade its remedial interpretation of the Guidelines applicabl e to all cases on direct review, however, and we therefore must still consider the m erits of the Government’s cross-appeal. See Booker , 125 S. Ct. at 769; United States v. Lynch , 397 F.3d 1270, 1272 (10th Cir. 2005). With respect to this claimed error, the Government suffers the same fate as the Appellants in their claim of error related to t he discovery of alleged promises made to Ms. Gutierrez in exchange for her testimony . The District Court’s ruling on this issue is conspicuously missing from the transcript and the Government has otherwise failed to point to the place in the recor d where this discussion is found. Because we must be informed by the District Court’s findings of fact and its application of the Guidelines to the facts, the Gov ernment’s failure to ensure that the record has been supplemented with the relevant transcripts is fatal to its claim.
See 10th Cir. R. 28.2(C)(2), (3); United States v. LaHue , 261 F.3d 993,-69-

1014–1015 (10th Cir. 2001). Next, the Government argues that the District Courterred in granting each Appellant a two-level downward departure based on their susceptibility to abuse in prison under U.S.S.G. § 5K2.0. We review downward departures under a unitary abuse of discretion “which includes review to determine that the discretion of the district court was not guided by erroneous legal conclusions.” United States v. Collins , 122 F.3d 1297, 1302 (10th Cir. 1997) (quotation and alteration omitted). In determining whether the di strict court abused its discretion this Court must evaluate: (1) whether the factual c ircumstances supporting a departure are permissible departure factors; (2) wh ether the departure factors relied upon by the district court remove the defend ant from the applicable Guideline heartland thus warranting a departure, (3 ) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. Id. Here, the Government claims only that the District Court erred in finding that the Appell ants’ susceptibility to abuse in prison removed them from the heartland of cases thu s warranting departure. The fact that police officers are susceptible to ab use in prison does not, alone, warrant a downward departure. See Koon v. United States , 518 U.S. 81, 112 (1996). Indeed, in many instances, committing a crime while acting under color of law will result in a higher sentence—as itdid in this case—rather than a lower sentence. See U.S.S.G. § 2H1.1(b)(1) (permitting enhancement when-70-

offense is committed under color of law). However, when a district court determines that the defendants’ susceptibility to a buse is compounded by “widespread publicity and emotional outrage . . . [ this] is just the sort of determination that must be accorded deference by th e appellate courts.” Koon , 518 U.S. at 112. Relying on Koon, the District Court found that this case was outsid e the heartland of the Guidelines because it was part of a vast investigation, spanning several years, that involved not only the abuse of inmates by correctional officers, but also the conspiracy to abuse inmates. In addit ion to evidence of the size and scope of the investigation, the District Court was presented with other evidence that this case was outside the heartland of cases. For example, there was evidence that the investigation was reported on in a publication distributed among federal inmates; that because of the Appellants’ notoriety they were on 23-hour lockdown; and that other inmates threatened the App ellants’ lives and described the types of sexual acts they would commit upon the ir bodies once they were dead. Based on these circumstances, the District C ourt felt that a two-level downward departure was warranted. We find no abuse of discretion in that determination. Finally, we address the Government’s argument that the District Court abused its discretion in granting Mr. Verbickas a two-level downward departure based on the combined reasons of Mr. Verbickas’s ab errant behavior, see-71-

U.S.S.G. § 5K2.20, and the victim’s misconduct thatsubstantially contributed to provoking the offense behavior, see U.S.S.G. § 5K2.10. Section 5K2.10 provides that: If the victim’s wrongful conduct contributed signif icantly to provoking the offense behavior, the court may reduce the sentence below the guideline range to reflect the nature and circumstances of th e offense. U.S.S.G. § 5K2.10. We first note that victim prov ocation is an “encouraged departure factor.” Koon , 518 U.S. at 94 (citing U.S.S.G. § 5K2.10). Furth er, the provoking conduct need not immediately precede the offense behavior. Id. at 104; see also U.S.S.G. § 5K2.10(3) (instructing courts to conside r the danger perceived by the defendant and the victim’s reputat ion for violence). In this case, there was testimony that Mr. Lane made sexually exp licit remarks to a female officer, threatened Mr. Verbickas immediately befor e the assault, and made an aggressive move toward him. Indeed, the District C ourt noted Mr. Lane’s “surly” behavior in granting the departure. The aberrant behavior exception may apply in an ex ceptional case when “the defendant committed a single criminal occurren ce or single criminal transaction that (1) was committed without signific ant planning; (2) was of limited duration; and (3) represents a marked deviation by the defendant from an otherwise law-abiding life.” U.S.S.G. § 5K2.20(a), (b). The conduct for which Mr. Verbickas was convicted meets the three require ments of § 5K2.20(b), and there is substantial evidence in the record that th is was also an exceptional case,-72-

thus warranting a departure. We therefore find no abuse of discretion in this case.
III. CONCLUSION For the foregoing reasons, we AFFIRM the Appellants ’ convictions and

sentences.1 Defendant Pruyne filed a similar motion, but ultim ately withdrew it.

ROA, Vol. X, at 142. No. 03-1515, United States v. Verbickas No. 03-1522, United States v. LaVallee No. 03-1523, United States v. Schultz No. 04-1000, United States v. Verbickas No. 04-1540, United States v. Schultz
BRISCOE , Circuit Judge, concurring:

I concur in the judgment but write separately to ad dress the issue of Grundy’s disqualification, as it relates to LaValle e and Schultz, in greater detail.
I. Grundy’s relationship with the defendants was firstbrought to the attention of the district court in July 2001, when defendant Gall, who was later acquitted, filed a motion to suppress statements he gave to FB I agents and prosecutors during the pre-indictment investigation. 1 In support of his motion, Gall argued that he was confused and/or misled by Grundy regard ing his right to legal representation at the time he gave the statements t o the FBI agents and prosecutors. The district court held an evidentiary hearing on Gall’s motion on September 25, 2001. ROA, Vol. X. Upon being calle d by Gall’s defense counsel, Grundy first testified generally about her duties at USP-Florence in 1999. According to Grundy, in early 1999 she “was the sup ervisory attorney with-2-

responsibilities for providing legal services to” e mployees “of the facilities at Florence” “[i]n connection with their jobs . . . .” Id. at 93. With respect to correctional officers who were sued by inmates alle ging abuse, Grundy testified that she would “assist the staff member, if they re quest[ed] representation by the Department of Justice, in obtaining representation or making the request itself . . . .” Id. In doing so, she would “ask them” for their versi on of “what happened.” Id. Then, “[i]f representation [wa]s granted,” she wo uld “assist the United States attorney’s office . . . in providing the defense to the civil suit of that particular employee.” Id. Grundy then testified about her dealings with def endant Gall. In 1997, Grundy was contacted by either the FBI or an attorney from the DOJ’s Civil Rights Division staff and informed that they “would be looking to interview certain correctional officer witnesses . . . .” Id

. at 126. Grundy was further informed that, other than being criminal in nature, she could not be told the nature of the investigation being conducted. Id. at 128. In March 1999, and again in July 1999, Grundy was asked by investigators to arr ange interviews for them with defendant Gall. Id. at 129. In arranging those interviews, Grundy inf ormed Gall that DOJ lawyers and FBI agents were interested in speaking with him, id. , and that he was free to speak or not speak with them. Id. at 130. Grundy further informed Gall that she “could not help him with” th e interviews and that she “wasn’t going in there.” Id. at 131. According to Grundy, Gall did not ask herto arrange legal or union representation for him. Id. at 131-32. The district court-3-

ultimately denied Gall’s motion. Id. at 236. Approximately nineteen months later, on April 21, 2 003 (the tenth day of trial), all of the defendants filed a joint motion to disqualify Grundy for violating Colorado Rules of Professional Conduct 1.6(a), 1.9, and 1.11(b) and (e). ROA, Vol. V, Doc. 1080. In their motion, defendants all eged that Grundy, who by that time was working as an assistant general counsel fo r the BOP nationally, provided prior representation to them in several respects. In particular, defendants alleged that while they were employed as correctional offic ers at USP-Florence, various civil actions were filed against them by inmates, a nd that Grundy acted as their legal counsel in connection with these actions. Id

. at 2-3. One such civil action was filed by inmate William Turner and concerned th e same alleged conduct that was listed as one of the overt acts in Count I of t he superseding indictment, and that formed the basis for Count VIII of the superse ding indictment (the jury acquitted defendants LaVallee, Schultz, and Bond on this latter count). In turn, defendants alleged that Grundy played two roles in the prosecution of the case against them. First, defendants alleged that Grundy “provided ‘liaison’ coordination between the BOP and the United States Attorney’s Office prosecuting this action until sometime prior to Apr il 1, 2002 as a BOP employee.” Id. Second, defendants alleged that “Grundy became a contract attorney for the United States Attorney prosecuting th[e] matter bef ore the commencement of th[e] trial.” Id. “In that role,” defendants alleged, “Grundy parti cipated in-4-

witness interviews with the witnesses to be called by the prosecution . . . .” Id. Based upon these allegations, defendants alleged th at “a conflict of interest exist[ed] and [that],” pursuant to the Colorado Rul es of Professional Conduct cited in their motion, “Grundy’s representation of the United States in this matter require[d] her disqualification.” Id. Upon receiving the motion, the district court asked the lead prosecutor to explain Grundy’s “role in th[e] case.” ROA, Vol. L VI, at 2195. The lead prosecutor explained that Grundy ha[d] been assigned by the [BOP] to assist and mana ge witnesses and just general management of the trial and act as lia ison to the prosecution team in order to make sure we get peopl e in and out at the right times and assist with travel and document s and basically logistics for the most part. She is not hired by t he U.S. Attorney’s office. She is not a special assistant U.S. attorn ey. Id. at 2195-96. In addition, the lead prosecutor stat ed that Grundy “was a general counsel or assistant general counsel for the [BOP]” and “d[id]n’t represent the defendants.” Id. at 2196. The district court stated it was “tempte d to summarily deny th[e motion] as late,” but would instead firstgive the government a chance to respond in writing. Id. On April 28, 2003, the government filed its written response to defendants’ motion to disqualify Grundy. Id. , Vol. V, Doc. 1120. Therein, the government asserted that Grundy “[wa]s not a contract attorneyfor the United States Attorney prosecuting the case at bar,” but rather was “Couns el for the [BOP] and ha[d]-5-

been facilitating the appearance of [BOP] staff at th[e] trial.” Id. at 1. “As such,” the government argued, Grundy’s “presence in the co urt c[ould not] be equated with the representation of the United States in the prosecution of th[e] case.” Id. Further, the government argued that “[i]n her role as Counsel for the [BOP],” Grundy “represented the [BOP] and not the employees of her agency.” Id. at 2. Although the government acknowledged that Grundy ac ted as “a conduit through which [prison] employees obtained representation fr om the U.S. Department of Justice and United States Attorney’s Office for civ il suits filed against them in their official capacities,” it asserted that such a ctions were “insufficient to create an attorney-client relationship” with the individua l prison employees she assisted. Id. Relatedly, the government asserted that defense c ounsel were “already aware that civil attorneys from the U.S. Department of Ju stice and/or the United States Attorney’s Office represented their clients in the various suits filed against them by inmates as they ha[d] already moved for notes an d statements provided to these attorneys by their clients.” Id. at 3. Lastly, the government asserted that “Grundy [wa]s not going to be called as a witness f or the government” at trial. Id. On April 28, 2003 (the same day the government file d its written response), the district court orally denied defendants’ motion to disqualify Ms. Grundy. ROA, Vol. LX, at 3212. In doing so, the district c ourt simply stated: “I find it to2The government, in its appellate brief, asserts th e district court denied the

motion as untimely. That assertion, however, is no t supported by the record. -6- be utterly without merit.” 2Id.
II. In their opening appellate briefs, LaVallee and Sch ultz contend that the inclusion of Jenifer Grundy on the prosecution teamwas a clear conflict of interest. (LaVallee’s Br. at 2, issue 3; and Schult z’s Br. at 42, issue 5.) Both LaVallee and Schultz have incorporated by reference the discussion of the Grundy issue contained in Verbickas’ opening appellate bri ef. Verbickas’ brief, in turn, repeatedly emphasizes that each of the defendants, including LaVallee and Schultz, had an attorney-client relationship with G rundy. In particular, Verbickas’ brief states: • “The [district] court was made aware of the confl ict presented by Grundy’s representation of Pruyne, LaVallee, Schultz and Bond at the hearing held on July 11, 2001.” Verbickas’ Br. at 28 (emphasis added). • “Grundy had an attorney-client relationship with the Defendants because of her position as legal counsel to the USP Florence employees. During the investigation of this case, all Defendants worked as correctional officers at USP Florence. A s a result of their employment, numerous civil actions were filed by in mates alleging some of the Defendants violated their civil rights, including: Turner v. Schultz, et al. , 99-WM-2232 . . . . These civil actions alleged s ocalled ‘Bivens’ violations against the Defendants a nd other correctional officers. LaVallee, Schultz and Bond, three codefendants in this trial, were named as Defendants in Turner ." Id. at 31 (emphasis added). • “Grundy represented Pruyne and these Defendants regarding their-7-

requests for DOJ representation. She entered into an attorney-client relationship with Defendants and gathered relevant information regarding their requests to be afforded DOJ legal r epresentation in these civil actions.” Id. at 32 (emphasis added). • “Grundy’s relationship with the Defendants proved there were attorney-client relationships that subjected her to the ethical obligation of preserving confidential communication s.” Id. at 38 (emphasis added).
• “ The Defendants looked to Grundy as theirlawyer.” Id. at 38 (emphasis added). • “Grundy advised Defendants .” Id. at 39 (emphasis added). • “Grundy’s prior relationship with the Defendants constitutes actual impropriety under Colorado law.” Id. at 42. In sum, the allegations in Verbickas’ brief are suf ficiently detailed to suggest the district court erred in denying LaVallee’s and Schu ltz’s motion to disqualify Grundy.
II. We “review a district court’s decision on a motion to disqualify counsel for abuse of discretion.” Chavez v. New Mexico , 397 F.3d 826, 839 (10th Cir. 2005);

see United States v. Bolton , 905 F.2d 319, 321 (10th Cir. 1990) (same). “The merits of [a] disqualification motion depend on whe ther a substantial relationship exists between the pending suit and the matter in w hich the challenged attorney previously represented the client.” Bolton , 905 F.2d at 321 (internal quotation marks omitted). In reviewing the district court’s ruling, the thres hold question is whether an-8-

attorney-client relationship existed between Grundyand either LaVallee or Schultz. According to defendants’ motion, a USP-Fl orence inmate named William Turner filed a federal civil action againstLaVallee and Schultz (as well as defendant Bond) asserting they violated his cons titutional rights by physically abusing him. Although it is not entirely clear fro m the record, it appears that LaVallee and Schultz sought and received representation from the Department of Justice with respect to this civil action and, in d oing so, worked at least initially with Grundy. Based upon the testimony Grundy gave during the evidentiary hearing on defendant Gall’s motion, it appears thatshe would have interviewed LaVallee and Schultz in order to obtain their versi on of events and, in turn, would have assisted them in obtaining representation fromother DOJ attorneys. As the supervisory attorney at USP-Florence, Grundy follow ed this general procedure when a USP-Florence employee sought DOJ representat ion after being sued by an inmate. Assuming these facts are true (the governm ent has never seriously disputed these facts), it appears that an attorney- client relationship did, in fact, exist between Grundy and these two defendants. Acc ording to 28 C.F.R. § 50.15(a)(3), “[a]ttorneys employed by any componentof the Department of Justice who participate in any process utilized forthe purpose of determining whether the [DOJ] should provide representation to a federal employee, undertake a full and traditional attorney-client re lationship with the employee with respect to application of the attorney-client privilege.” This provision would-9-

clearly encompass Grundy, since she allegedly “part icipate[d] in [the] process utilized” by the DOJ for determining whether it wou ld provide representation to USP-Florence employees. Assuming, then, that Grundy had an attorney-client relationship with LaVallee and Schultz regarding the William Turner l awsuit, the question then becomes whether, pursuant to the Colorado Rules of Professional Conduct cited by defendants in their original motion, that relati onship barred Grundy from acting as a “liaison” to the DOJ attorneys prosecut ing the defendants. Defendants first cited to Rule 1.6(a), entitled Confidentiality of Information , which states: A lawyer shall not reveal information relating to r epresentation of a client unless the client consents after consultatio n, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c). Applying that rule to the circumstances here, there is no evidence, and no express assertion by defendants, that Grundy revealed to th e prosecution team any information that was provided to her by LaVallee orSchultz in connection with the civil suit filed against them by inmate Turner. Nor does it appear to be a reasonable assumption that, by simply coordinating BOP witnesses for the prosecution team, Grundy necessarily would have dis closed any such information. Thus, there is no basis for concluding that Grundy’ s role as “liaison” to the prosecution team resulted in a violation of Rule 1. 6(a).3 Even assuming, for purposes of argument, that Grun dy could have been

considered a member of the prosecution team, any re sulting violation of Rule (continued...) -10- The second rule cited by defendants was Rule 1.9(a) , entitled Conflict of Interest: Former Client , which states: A lawyer who has formerly represented a client in amatter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the fo rmer client consents after consultation. Applying that rule to the circumstances present her e, it appears, for the reasons already discussed, that Grundy likely had an attorn ey-client relationship with LaVallee and Schultz in connection with the civil l awsuit filed by inmate Turner. Further, as noted, that civil lawsuit was apparentl y based upon some of the same allegations of abuse as set forth in the supersedin g indictment. Thus, Rule 1.9(a) would have prohibited Grundy from representing any interests that were adverse to defendants LaVallee and Schultz. Based upon the information contained in the government’s response to defendants’ motion to disq ualify Grundy, however, there is no indication that she ever acted as gover nment counsel in these criminal proceedings. In other words, although defendants h ave characterized Grundy as a “member of the prosecution team,” it appears that s he, in fact, simply helped to coordinate BOP witnesses for the DOJ attorneys who represented the government in this case, and otherwise played no role in the i nvestigation or prosecution of the charges against defendants. Thus, Rule 1.9(a) was not violated. 33 (...continued)

1.9(a) was harmless. In particular, the jury acqui tted defendants LaVallee and Schultz of the substantive charge that alleged the beating of inmate William Turner. Further, LaVallee’s and Schultz’s conspira cy convictions rested upon their role in beating inmate Pedro Castillo and the n concealing evidence of that beating. -11- Finally, defendants cited Rule 1.11, entitled Successive Government and Private Employment , which states, in pertinent part: (b) Except as law may otherwise expressly permit, alawyer having information that the lawyer knows is confidential g overnment information about a person acquired when the lawyerwas a public officer or employee, may not represent a private cl ient whose interests are adverse to that person in a matter in which the information could be used to the material disadvant age of that person. A firm with which that lawyer is associate d may undertake or continue representation in the matter only if th e disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom.
* * * (e) As used in this Rule, the term “confidential go vernment information” means information which has been obtai ned under governmental authority and which, at the time this rule is applied, the government is prohibited from disclosing to the pub lic or has a legal privilege not to disclose, and which is not otherwi se available to the public. Clearly, this rule has no application here, since G rundy has continuously worked for the BOP and has never worked in private practic e representing a private client. In sum, I conclude there was no merit to defendants ’ motion to disqualify Grundy, and thus the district court did not abuse i ts discretion in denying that-12-

motion.