PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-2860

_____________

UNITED STATES OF AMERICA

v.

SHAWN D. SHAW,

 Appellant

______________

Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-13-cr-00660-001)

District Judge: Honorable Esther Salas

_____________

Argued: September 26, 2017

______________

Before: SMITH, Chief Judge, McKEE and RESTREPO, 

Circuit Judges.

(Filed: May 30, 2018)

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2

Robert T. Pickett, Esq. [ARGUED]

Pickett & Craig

80 Main Street, Suite 430

West Orange, NJ 07052

Counsel for Appellant 

Desiree L. Grace, Esq. [ARGUED]

William E. Fitzpatrick, Esq.

Mark E. Coyne, Esq.

Office of the United States Attorney

970 Broad Street

Room 700

Newark, NJ 07102

Counsel for Appellee

______________

OPINION OF THE COURT

______________

RESTREPO, Circuit Judge.

Appellant Shawn Shaw, a former corrections officer, 

was convicted by a jury of sexually assaulting a female 

inmate in violation of 18 U.S.C. § 242 and obstruction of 

justice in violation of 18 U.S.C. § 1512(b)(3). We will 

affirm. 
3

I

In December 2010, E.S.1 was a pretrial detainee 

incarcerated at the Essex County Correctional Facility

(“ECCF” or “jail”) in Newark, New Jersey. Shaw was a 

correctional officer employed at ECCF. Although Shaw had 

worked at the jail for five years, he had worked in the 

women’s unit only a handful of times. On December 27 and 

28, 2010, Shaw was asked to cover the women’s unit alone 

during the overnight shift from 10:00 p.m. to 6:00 a.m. 

because the jail was short-staffed due to a snow storm.

When Shaw arrived for his shift, some of the women 

including E.S. “flashed” him with their buttocks as “sort of a 

hazing ritual to the new officer in the unit.” App. 326. Shaw 

responded by making sexual comments to E.S., such as 

asking if he can “hit that,” which E.S. understood to be a 

request to perform sexual acts. App. 327. Shaw also spoke 

over an intercom connected to the cell that E.S. shared with a 

cellmate, made explicit sexual advances, and threatened that 

he was “going to come in there” and “get [her] out of there.” 

App. 329.

Shortly before 3:00 a.m. on December 28, 2010, E.S. 

awoke to Shaw in her cell.2 Shaw removed E.S.’s pants,

“forced himself on [her],” App. 332, by “[p]ressing down” his 

hand on her chest so that she was unable to get up, and 

digitally penetrated her vagina, App. 404. Shaw then 

removed his own pants and underwear and laid on top of E.S.

 

1

 The victim is herein identified only by her initials.

2 E.S.’s cellmate testified that she remained asleep.
4

with the weight of his body. Shaw proceeded to engage in 

sexual intercourse with E.S. who was unable to move and 

“felt like [she] couldn’t breathe.” App. 404.3

E.S. did not immediately report the incident, but told a 

male inmate (via hand signals), her mother and her attorney. 

The male inmate reported the incident to the jail. When 

confronted, E.S. formally reported the sexual assault. She 

was examined by a Sexual Assault Nurse Examiner, and was 

found to have semen on her cervix. The Government later 

extracted a DNA mixture. An expert for the Government 

testified at trial that it was “approximately 28.9 million times 

more likely in the African American population” that E.S. and 

Shaw were the sources of the mixture, than if E.S. and a 

“randomly selected unrelated individual” were the sources. 

App. 610. Shaw is African American. 

The Government also introduced electronic records of 

the cell doors at ECCF. The records established that E.S.’s 

cell door was opened on the night of the incident at 2:43:41 

a.m. and closed at 2:50:39 a.m. The computer that opened the 

door was “TS 04” and Shaw was logged into TS 04 at that 

time. No one else logged into TS 04 during Shaw’s overnight 

shift.

Jail investigators also retrieved surveillance videos. 

Although there was no video of either E.S.’s cell or the TS 04 

work station, the videos did show Shaw going on break and 

returning to the women’s unit slightly before the sexual 

 

3 At trial, E.S. testified that she is five feet, five inches 

tall and one hundred and thirty pounds; she estimated that 

Shaw is over six feet tall and far heavier than she.
5

assault. The surveillance videos refuted Shaw’s intimation to 

investigators that he was on break during the incident.

There was, however, a complication in interpreting the 

video evidence: the surveillance camera clocks were not 

synchronized with one another or with the clock associated 

with the cell door records. To synchronize the time stamps ex 

post, an ECCF maintenance information technician, Delfin 

Neves, used “arithmetic.” App. 153. Neves calculated the 

“difference” between each surveillance camera clock and the 

clock for the facility systems. App. 152.4 He recorded the 

results in a chart listing the “drift” for each surveillance

camera clock. App. 131.5

Using Neves’ chart, an ECCF investigator, Maria 

Theodoridis, adjusted the time stamps on the videos showing

Shaw leaving and returning from break. After her 

corrections, the video evidence showed that Shaw left for

 

4 The facilities systems clock is accurate because 

Neves calibrates it twice a week. 

5 Neves made his calculations a few days after the 

incident, and so his chart approximated the drift on the night 

of the incident. One surveillance camera clock was four 

minutes and forty seconds ahead of the facilities systems 

clock; another was five minutes and thirteen seconds behind. 

In short, even though the surveillance cameras were recording 

simultaneously, they showed a nine minute and fifty-three 

second difference in time.
6

break at 2:31:06 a.m. and returned at 2:37:46 a.m.—a few 

minutes before E.S.’s cell door was opened at 2:43:41 a.m.6

On December 31, 2010, Shaw gave a statement to 

investigators at the Essex County prosecutor’s office. Shaw 

denied making sexual advances to E.S., repeatedly and 

emphatically denied opening her cell door, and repeatedly 

denied even entering her cell. Shaw told the investigators that 

he left the women’s unit on his break “at like two thirty, two 

forty” for “about twenty minutes” and returned “maybe 

something about . . . three o’clock.” SA 5.

At trial, Shaw testified consistent with his prior 

statement. He denied making sexual comments to E.S.,

denied opening E.S.’s cell door, and denied having sexual 

intercourse with E.S. Shaw testified that he was on break 

“[n]o more than 20 minutes,” but also agreed that it was more 

accurate to say that he was “only gone six or seven minutes.” 

App. 764. Shaw also testified that male and female inmates 

were known to be engaging in sexual intercourse in the ECCF

gym.

The jury convicted Shaw of deprivation of civil rights 

through aggravated sexual abuse, 18 U.S.C. § 242, and 

obstruction of justice, 18 U.S.C. § 1512(b)(3).7 The District 

 

6

If the time stamps had not been corrected, the videos 

would have shown Shaw returning from break at 2:42:49, a 

minute before E.S.’s cell door opened at 2:43:41 a.m.

7

 The jury, however, found that the deprivation of 

civil rights did not result in bodily injury. See 18 U.S.C. 

§ 242.
7

Court sentenced Shaw to 25 years’ incarceration and 5 years’ 

supervised release. This represented a downward variance 

from the Sentencing Guideline range of life. This timely 

appeal followed.8

II

We begin by addressing Shaw’s claims related to his

conviction for deprivation of civil rights by aggravated sexual 

abuse, 18 U.S.C. § 242. Shaw challenges (1) the District 

Court’s jury instructions and (2) the sufficiency of the 

evidence. We will describe the statute and then address each 

claim in turn.

A

1

A deprivation of civil rights under Section 242 of Title 

18 occurs where a defendant “under color of any law, statute, 

ordinance, regulation, or custom, willfully subjects any 

person . . . to the deprivation of any rights, privileges, or 

immunities secured or protected by the Constitution or laws 

of the United States.” 18 U.S.C. § 242. This is a 

Reconstruction Era civil rights law. United States v. Lanier, 

520 U.S. 259, 264 & n.1 (1997). “Section 242 makes it a 

crime for a state official to act ‘willfully’ and under color of 

 

8 The District Court had jurisdiction under 18 U.S.C. 

§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 

18 U.S.C. § 3742.
8

law to deprive a person of rights protected by the 

Constitution.” Hope v. Pelzer, 536 U.S. 730, 739 (2002); see 

also Lanier, 520 U.S. at 264. The statute is “unusual for its 

application in so many varied circumstances.” Koon v. 

United States, 518 U.S. 81, 101 (1996). Among these, 

“[t]here are a multitude of cases in which prison 

administrators have been prosecuted under [Section 242].” 

United States v. Guadalupe, 402 F.3d 409, 414 (3d Cir. 

2005).

As is relevant here, Section 242 sets forth three 

statutory maximum sentences. First, the default maximum 

sentence is “imprison[ment] not more than one year.” 

18 U.S.C. § 242. Second, “if bodily injury results . . . or if 

such acts include the use, attempted use, or threatened use of 

a dangerous weapon, explosives, or fire” the statutory 

maximum is “imprison[ment] not more than ten years.” Id. 

Third, “if death results from the acts committed in violation 

of this section or if such acts include kidnapping or an attempt 

to kidnap, aggravated sexual abuse, or an attempt to commit 

aggravated sexual abuse, or an attempt to kill” the statutory 

maximum is life imprisonment or death.9Id. (emphasis 

added); see also Violent Crime Control and Law Enforcement 

Act of 1994, Pub. L. No. 103-322 § 320103 (1994) (enacting, 

inter alia, increased statutory maximum sentence for

aggravated sexual abuse or its attempt).

 

9 Cf. Kennedy v. Louisiana, 554 U.S. 407, 413 (2008) 

(holding that the Eighth Amendment bars the death penalty 

for rape of a child where the crime did not result and was not 

intended to result in death).
9

In the case before us, the Government charged Shaw 

with both the base and aggravated violations of Section 242. 

As to the base offense, Shaw was charged with depriving E.S. 

of due process through unwanted sexual contact so egregious 

as to shock the conscience. See Lanier, 520 U.S. at 261; 

United States v. Giordano, 442 F.3d 30, 47 (2d Cir. 2006). 

As to the aggravated offense, the Government charged Shaw

with, inter alia, a violation of civil rights through “aggravated 

sexual abuse.” App. 20. 

Section 242, notably, does not define the term 

“aggravated sexual abuse.” 18 U.S.C. § 242. While this 

Court has not yet addressed the issue, a number of our sister 

Circuits have defined the term by reference to the federal 

aggravated sexual abuse statute, 18 U.S.C. § 2241, excluding

its jurisdictional requirements. See Cates v. United States, 

882 F.3d 731, 736 (7th Cir. 2018); United States v. Lanham, 

617 F.3d 873, 888 (6th Cir. 2010); United States v. Holly, 488 

F.3d 1298, 1301 (10th Cir. 2007); United States v. Simmons, 

470 F.3d 1115, 1120 (5th Cir. 2006). Likewise, the

Government used this definition in its indictment of Shaw,

and the parties agree on appeal that this was appropriate. As 

such, we will employ this approach, defining aggravated 

sexual abuse for the purposes of Section 242 by reference to

18 U.S.C. § 2241(a). 

2

Aggravated sexual abuse under Section 2241(a) 

“prohibits forced sexual acts against another person.” 

Lockhart v. United States, 136 S. Ct. 958, 964 n.1 (2016)

(quotation marks omitted). The statute is violated where the 
10

offender “knowingly causes another person to engage in a 

sexual act—(1) by using force against that other person; or 

(2) by threatening or placing that other person in fear that any 

person will be subjected to death, serious bodily injury, or 

kidnapping; or attempts to do so.” 18 U.S.C. § 2241(a).

10

 

We read the aggravated sexual abuse statute, 

Section 2241(a), in contrast to the statute defining the lesser 

crime of (non-aggravated) sexual abuse, 18 U.S.C. § 2242(1). 

See, e.g., Cates, 882 F.3d at 736; United States v. H.B., 695 

F.3d 931, 936 (9th Cir. 2012); United States v. Crowley, 318 

F.3d 401, 406 (2d Cir. 2003); United States v. Lauck, 905 

F.2d 15, 18 (2d Cir. 1990). Indeed, sexual abuse is defined 

by reference to aggravated sexual abuse—Section 2242(1)

contains an explicit “carve-out” for threats encompassed by 

Section 2241(a)(2). Cates, 882 F.3d at 736. Sexual abuse 

occurs, in relevant part, where the defendant knowingly 

“causes another person to engage in a sexual act by 

 

10 A “sexual act” includes, in relevant part, “the 

penetration, however slight, of the anal or genital opening of 

another by a hand or finger or by any object, with an intent to 

abuse, humiliate, harass, degrade, or arouse or gratify the 

sexual desire of any person” or “contact between the penis 

and the vulva.” 18 U.S.C. § 2246(2)(A), (C). A “‘sexual act’ 

. . . require[s] penetration or actual skin-to-skin contact 

between various specified body parts.” United States v. Dahl, 

833 F.3d 345, 355 (3d Cir. 2016) (citing 18 U.S.C. 

§ 2246(2)(A)-(C)); see also id. (citing 18 U.S.C. 

§ 2246(2)(D)); United States v. Hayward, 359 F.3d 631, 641 

(3d Cir. 2004) (observing that “‘sexual act’ . . . requires skinto-skin touching”).
11

threatening or placing that other person in fear (other than by 

threatening or placing that other person in fear that any 

person will be subjected to death, serious bodily injury, or 

kidnapping).” 18 U.S.C. § 2242(1).

When read together, Sections 2241(a) and 2242(1)

demonstrate Congress’s graded approach to criminalizing 

sexual assault.

11 Aggravated sexual abuse requires the jury to 

“find that the defendant (1) actually used force against the 

victim or (2) that he made a specific kind of threat—i.e. that 

he threatened or placed the victim in fear of death, serious 

bodily injury, or kidnapping.” Cates, 882 F.3d at 737

(emphasis in original); see also H.B. 695 F.3d at 936. In 

contrast, sexual abuse “encompasses the use of any [other] 

kind of threat or other fear-inducing coercion to overcome the 

victim’s will.” Cates, 882 F.3d at 737. “Threats or fearinducing coercion of a lesser nature can support a conviction 

 

11

 The legislative history further supports this reading 

of the text. Sections 2241 and 2242 were enacted together as 

part of the Sexual Abuse Act of 1986, Pub. L. No. 99-654, 

100 Stat. 3660 (1986). The Act created “a series of graded 

sexual offenses” and employed a “graded approach” to 

criminalizing sexual assault. Hearings on Sexual Abuse Act 

of 1986 before Subcommittee on Criminal Justice of the 

House Committee of the Judiciary, 99th Cong., 2d Sess. at 3-

4 (Apr. 29, 1986) (statement of principal sponsor 

Representative Steny H. Hoyer); see also H. Rep. No. 594, 

99th Cong., 2d Sess. (May 9, 1986), reprinted in 1986 

U.S.C.C.A.N. 6186, 6190 (identifying Representative Hoyer 

as the principal sponsor).
12

for the crime of sexual abuse under § 2242(1) but not 

aggravated sexual abuse under § 2241(a)(2).” Id.

3

Other Circuits have further interpreted Section 

2241(a)(1) by reference to a House Judiciary Committee 

Report accompanying the Sexual Abuse Act of 1986. See

H.B., 695 F.3d at 936 (quoting H. Rep. No. 99-594 at 14

n.54a); see also United States v. Johnson, 492 F.3d 254, 255

(4th Cir. 2007); United States v. Fire Thunder, 908 F.2d 272, 

274 (8th Cir. 1990); Lauck, 905 F.2d at 17. 

The House Report provides that for Section 2241(a), 

“[t]he requirement of force may be satisfied by a showing of 

[1] the use, or threatened use, of a weapon; [2] the use of such 

physical force as is sufficient to overcome, restrain, or injure 

a person; or [3] the use of a threat of harm sufficient to coerce

or compel submission by the victim.” H. Rep. No. 99-594 at 

14 n.54a (emphasis added). There are two problems, 

however, with adopting this definition in its entirety. 

First and notably, the House Report purports to define

something specific—the “requirement of force” for Section 

2241(a). Id. Although this point has been overlooked, see, 

e.g., Johnson, 492 F.3d at 258, the House Report does not 

purport to define the element “using force against th[e] other 

person” under Section 2241(a)(1). In fact, the House Report 

also purports to define the “requirement of force” for Section

2242(1). H. Rep. No. 99-594 at 16. The latter statute, of 

course, does not contain the element “using force against 

th[e] other person.” Therefore, the “requirement of force” 
13

defined in the House Report cannot be the element “using 

force against th[e] other person” under Section 2241(a)(1).

The second problem relates to the statutory text. The 

House Report defines the “requirement of force” for Section 

2241(a) in three ways. The third is “the use of a threat of 

harm sufficient to coerce or compel submission by the 

victim.” Id. at 14 n.54a. But “defining ‘force’ in this 

expansive way . . . flatly contradict[s] the text of 

§ 2241(a)(1),” which requires actual force. Cates, 882 F.3d at 

737; see also Br. for Appellee 24 (agreeing with “the 

unremarkable proposition that aggravated sexual assault 

‘requires a showing of actual force’”) (quoting H.B., 695 F.3d 

at 936 (interpreting Section 2241(a)(1))). 

Moreover, it is not a solution to construe the House 

Report’s third definition as applying to Section 2241(a)(2)

instead of Section 2241(a)(1). On its face, Section 2241(a)(2)

encompasses only certain threats—of “death, serious bodily 

injury, or kidnapping.” 18 U.S.C. § 2241(a)(2). If adopted, 

the third portion of the House Report’s definition would 

collapse the distinction between Section 2241(a)(2) and 

Section 2242(1). 

Indeed, the Government at no point defends the House 

Report’s third definition. Instead, the Government asks us to 

adopt the second portion of the House Report’s definition, 

defining the “requirement of force” as “the use of such 

physical force as is sufficient to overcome, restrain, or injure 

a person.” H. Rep. No. 99-594 at 14 n.54a. The Government 

relies primarily upon United States v. Lauck, in which the 

Second Circuit quotes only this portion of the House Report’s 

definition. See Br. for Appellee 17 (quoting Lauck, 905 F.2d 
14

at 17). Specifically, Lauck provides that for the purpose of 

Section 2241(a)(1), “[t]he requirement of force may be 

satisfied by a showing of . . . the use of such physical force as 

is sufficient to overcome, restrain, or injure a person . . . .” 

905 F.2d at 17 (alterations in original) (quoting H. Rep. No. 

99-594 at 14 n.54a); see also United States v. Archdale, 229 

F.3d 861, 868 (9th Cir. 2000) (same); United States v. Fulton, 

987 F.2d 631, 633 (9th Cir. 1993) (same). We agree with this 

approach and will adopt it for the analysis that follows.

12

B

We turn now to the District Court’s jury instructions

on the alleged deprivation of civil rights through aggravated 

sexual abuse, 18 U.S.C. § 242. Where, as here, a party has 

objected to a trial court’s jury instruction, “[w]e exercise 

plenary review in determining ‘whether the jury instructions 

stated the proper legal standard.’” United States v. 

Khorozian, 333 F.3d 498, 507-08 (3d Cir. 2003) (citation 

omitted). We review the “wording of instructions for abuse 

of discretion.” Gov’t of Virgin Islands v. Mills, 821 F.3d 448, 

465 (3d Cir. 2016). “We must reverse if ‘the instruction was 

capable of confusing and thereby misleading the jury.’” 

United States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995) 

(en banc); see also United States v. Tykarsky, 446 F.3d 458, 

477 (3d Cir. 2006). In reviewing the charge, “we consider the 

 

12

 We need not reach the first portion of the House 

Report’s definition, providing that for Section 2241(a), “[t]he 

requirement of force may be satisfied by a showing of the 

use, or threatened use, of a weapon.” H. Rep. No. 99-594 at 

14 n.54a.
15

totality of the instructions and not a particular sentence or 

paragraph in isolation.” Khorozian, 333 F.3d at 508 (citation 

omitted). 

1

In Shaw’s case, the District Court first instructed the 

jury on the base offense of deprivation of civil rights, 

18 U.S.C. § 242. As part of this instruction, it charged the 

jury on the alleged deprivation of the right to bodily integrity, 

in relevant part, as follows:

The government alleges that the 

defendant deprived [E.S.] of the 

right to bodily integrity by 

sexually assaulting her. In 

determining whether the alleged 

conduct of the defendant 

constitutes unwanted sexual 

contact, it is not necessary to find 

that the defendant used physical 

force against [E.S.]. Instead, you 

may consider factors such as the 

context in which the alleged 

incident occurred, the relationship 

between the parties, the relative 

positions of power and authority 

between the defendant and [E.S.], 

the disparity in size between the 

defendant and [E.S.], and the use 

of mental coercion.

App. 803-04 (emphasis added).
16

The District Court later instructed the jury on the 

aggravated crime of deprivation of civil rights through 

aggravated sexual abuse, 18 U.S.C. § 242. As part of this 

instruction, the District Court instructed the jury on the 

element of “using force against th[e] other person” under 

Section 2241(a)(1). Shaw challenges a narrow portion of the 

charge, as follows:

You may find that the defendant’s 

conduct involved aggravated 

sexual abuse if you find that he 

used force during the alleged 

sexual assault. . . . [R]estraint 

alone can constitute sufficient 

force to meet the force 

requirement when a defendant 

employs a degree of restraint 

sufficient to prevent an individual 

from escaping the sexual contact. 

The disparity in coercive power 

and size between the defendant 

and [E.S.] are factors that the 

jury may consider when 

determining whether force was 

utilized.

App. 808-09 (emphasis added).

On appeal, Shaw challenges only the emphasized 

portion of the charge, in which the District Court instructed 

the jury that disparities in coercive power and size are 

“factors” to consider as to aggravated sexual abuse under 
17

Section 2241(a)(1).

13

 Specifically, Shaw argues that this

“disparit[ies]” instruction was strikingly similar to the District 

Court’s earlier instruction on unwanted sexual contact. As 

such, he argues, the jury instructions collapsed the distinction 

between the greater and lesser offenses. For the reasons 

below, we agree.

As to the text of the jury instructions, Shaw correctly 

notes that the District Court instructed the jury to consider 

disparities in power and size as “factors” for both a 

deprivation of civil rights and a deprivation of civil rights 

through aggravated sexual abuse. App. 803, 808. First, the 

District Court instructed the jury to consider “the disparity in 

size between the defendant and [E.S.], and the use of mental 

coercion” when determining whether there was unwanted 

sexual contact. App. 803-04. Second, it instructed the jury to 

consider “[t]he disparity in coercive power and size between 

the defendant and [E.S.] . . . when determining whether force 

was utilized” for aggravated sexual abuse. App. 808-09. 

These instructions together could have “confus[ed] and 

thereby misle[d]” the jury into believing that non-consent or 

coerced consent was equivalent to the use of force. 

Zehrbach, 47 F.3d at 1264.

Indeed, the Seventh Circuit recently rejected a similar 

disparities instruction in United States v. Cates, 882 F.3d at 

737. In Cates, the trial court charged the jury that, for the 

purpose of Section 2241(a)(1), “[f]orce may also be implied 

from a disparity in coercive power or in size between the 

 

13 This opinion should not be read to approve of any 

portion of the jury instructions not challenged on appeal. 
18

defendant and [victim].” Id. (first alteration in original). On 

appeal, the Seventh Circuit held that this instruction 

“erroneously conflated the distinction between ‘force’ and 

‘fear,’ . . . permitt[ing] the jurors to find that [the defendant] 

committed aggravated sexual abuse based on proof of 

something less than either physical force or a threat of fear of 

death or serious bodily injury.” Id. We hold the same is true 

here. 

In reaching this conclusion, we recognize that the 

Tenth Circuit has adopted the opposite position, upholding a

jury instruction that “[f]orce may also be implied from a 

disparity in coercive power or in size between the defendant 

and the victim or from the disparity in coercive power, 

combined with physical restraint.” Holly, 488 F.3d at 1301. 

The problem with Holly is that the approved jury instruction 

is unmoored from its foundation.

The disparities instruction approved in Holly is based 

upon the House Report accompanying the Sexual Abuse Act 

of 1986. As explained above, the House Report provides that 

the “requirement of force” under Section 2241(a) “may be 

satisfied by . . . the use of such physical force as is sufficient 

to overcome, restrain, or injure a person.” H. Rep. No. 99-

594 at 14 n.54a (emphasis added). Applying this definition, 

an early Eighth Circuit decision held that restraint—and

thereby force—could be proven, at least in part, through 

evidence of size disparities. See United States v. Bordeaux, 

997 F.2d 419, 421 (8th Cir. 1993); see also United States v. 

Demarrias, 876 F.2d 674, 678 (8th Cir. 1989); Simmons, 470 

F.3d at 1121. Likewise, at oral argument the Government 

defended the District Court’s disparities instruction on the 
19

ground that disparities are relevant to physical restraint.14 

The Holly instruction, however, contained no such link. Nor 

did the disparities instruction in Shaw’s case. Instead, the

District Court’s disparities jury instruction could have misled 

the jury into “conflat[ing]” non-consent or coerced consent 

with actual force, undermining Congress’s graded approach.

Cates, 882 F.3d at 737.

2

This does not, however, complete our analysis. 

Rather, we must “consider the totality of the instructions and 

not a particular sentence or paragraph in isolation.” United 

States v. Sussman, 709 F.3d 155, 175 (3d Cir. 2013) (citation 

omitted). Read in their totality, the District Court’s jury 

 

14

 See Oral Argument at 1:14:53 (“The disparity in 

size and coercive power is certainly relevant as to whether the 

force is sufficient to restrain the victim.”); id. at 1:15:46 (“I’m 

saying physical force sufficient to restrain the victim, and in 

that instance a disparity in size and coercive power is 

certainly relevant to that finding.”). Conversely, the 

Government disclaimed the position that disparities in 

coercive power without physical restraint amount to the use of 

force under Section 2241(a)(1). Id. at 1:17:02 (positing that if 

there were physical disparities but no restraint “I don’t know 

that there would be force, unless the victim is testing that she 

is physically unable to escape the sexual contact.”); id. at 

1:25:51 (positing that coerced sexual intercourse based upon 

a correction officer’s threat to revoke inmate’s visitation and 

telephone privileges “would not entail the requisite force to 

bring this to an aggravated sexual abuse”). 
20

instructions did not convey to the jury that it could convict 

Shaw of a deprivation of civil rights through aggravated 

sexual abuse without finding actual force. Therefore, 

considering the charge as a whole, we will affirm. See United 

States v. McGill, 964 F.2d 222, 236 (3d Cir. 1992).

Although the District Court’s disparities instruction

could have misled the jury, other portions of the charge 

adequately distinguished between the lesser and aggravated 

offenses. See United States v. Berrios, 676 F.3d 118, 138 (3d 

Cir. 2012). As to the lesser offense, the District Court 

explained to the jury that “it is not necessary to find that the 

defendant used physical force against [E.S.].” App. 803. It 

instructed the jury that it could convict based upon “unwanted 

or coerced” sexual contact, App. 803, or a sexual act that was 

“unauthorized and not due to the free and voluntary consent 

of [E.S.],” App. 804. It instructed the jury to consider 

“whether any such sexual act occurred freely and voluntarily, 

or was the result of official intimidation, harassment, or 

coercion.” App. 804.

In contrast, as to the aggravated offense, the District 

Court explained to the jury that Section 2241(a) requires 

either “using force against th[e] other person . . . [o]r . . . 

placing th[e] other person in fear that any person will be 

subjected to death, serious bodily injury, or kidnapping.”

App. 807. Adding clarity, it instructed the jury that Section 

2241(a)(1) requires the jury to find that Shaw “used force 

during the alleged sexual assault,” App. 808, and contains a

“requirement of force,” App. 808.
21

Thus, upon consideration of the charge as a whole, the 

instructional error does not warrant overturning the verdict. 

See Mills, 821 F.3d at 467.

C

Relatedly, Shaw also challenges the sufficiency of the 

evidence for a deprivation of civil rights through aggravated 

sexual abuse, 18 U.S.C. § 242. Our review of the sufficiency 

of the evidence is “highly deferential.” United States v. 

Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (en 

banc). We ask “whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime 

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 

307, 318-19 (1979) (emphasis omitted). For the reasons 

below, we will affirm.15 

As stated above, the crime of aggravated sexual abuse 

occurs where the offender “knowingly causes another person 

to engage in a sexual act—(1) by using force against that 

other person; or (2) by threatening or placing that other 

person in fear that any person will be subjected to death, 

serious bodily injury, or kidnapping; or attempts to do so.” 

18 U.S.C. § 2241(a). Under Section 2241(a)(1), “[t]he 

requirement of force may be satisfied by a showing of . . . the 

 

15 The parties dispute whether Shaw preserved his 

sufficiency of the evidence claim in the District Court through 

a motion for judgment of acquittal. We need not resolve this 

dispute because, even assuming arguendo that the issue was 

preserved, the claim fails.
22

use of such physical force as is sufficient to overcome, 

restrain, or injure a person . . . .” Lauck, 905 F.2d at 17 

(alterations in original) (quoting H. Rep. No. 99-594 at 14

n.54a).

Shaw argues that the evidence was insufficient to 

establish that he “us[ed] force against th[e] other person” 

under Section 2241(a)(1). We disagree. Viewed in the light 

most favorable to the Government, a rational juror could have 

found that Shaw used actual force when he “forced himself 

on [E.S.],” App. 332, by “[p]ressing down” his hand on E.S.’s 

chest so that she was unable to get up, App. 404, while 

committing the sexual act of digital penetration, and laid on 

E.S. with the weight of his body, while having sexual 

intercourse with her, such that she was unable to move and 

“felt like [she] couldn’t breathe,” App. 404. Therefore, 

Shaw’s sufficiency of the evidence claim fails. 

III

We now address Shaw’s remaining claims: two 

evidentiary issues and a constitutional speedy trial claim. 

Each lacks merit. 

A

In his first evidentiary claim, Shaw challenges a 

portion of E.S.’s testimony on redirect examination. 

Specifically, the District Court permitted E.S. to testify on 

redirect that she is in therapy in connection with the sexual 

assault. Shaw objected to this testimony, but the District 

Court overruled the objection on the ground that Shaw 

opened the door on cross-examination in two ways: (1) by 
23

asking E.S. whether she had “done reasonably well getting 

[her] life together since this event” and (2) by asking E.S. 

whether she had told school students during a presentation 

that the “worst” part of her experience in jail was a fight. 

App. 369, 375.

We need not determine whether the District Court 

abused its discretion in allowing E.S. to testify that she is in 

therapy, as any potential error would be harmless. See United 

States v. Bailey, 840 F.3d 99, 124 (3d Cir. 2016). “An 

evidentiary error is harmless if ‘it is highly probable that the 

error did not contribute to the judgment,’ which ‘requires that 

the court possess a sure conviction that the error did not 

prejudice the defendant.’” Id. (quoting Zehrbach, 47 F.3d at

1265). Any error in Shaw’s case would be harmless “given 

the truly overwhelming quantity of legitimate evidence”

against him, including E.S.’s testimony, the DNA evidence,

the cell door records, and the surveillance videos, and given 

that the Government did not mention this testimony in its 

closing argument. United States v. Christie, 624 F.3d 558, 

571 (3d Cir. 2010). Thus, this evidentiary claim fails.

 

B

In his second evidentiary claim, Shaw argues that the 

District Court admitted lay opinion testimony in violation of

Federal Rule of Evidence 701(c). We review this claim for 

abuse of discretion. See United States v. Hoffecker, 530 F.3d 

137, 170 (3d Cir. 2008). Under Rule 701, lay opinion 

testimony must be “(a) rationally based on the witness’s 

perception; (b) helpful to clearly understanding the witness’s 

testimony or to determining a fact in issue; and (c) not based 

on scientific, technical, or other specialized knowledge within 
24

the scope of Rule 702.” Fed. R. Evid. 701. Rule 701(c) 

prohibits a party from “us[ing] Rule 701 as an end-run around 

the reliability requirements of Rule 702 and the disclosure 

requirements of [Federal Rule of Criminal Procedure 16].” 

Hirst v. Inverness Hotel Corp., 544 F.3d 221, 227 (3d Cir. 

2008).

Citing Rule 701(c), Shaw challenges the District 

Court’s decision to allow an ECCF maintenance information 

technician, Neves, to testify as a lay witness. Neves testified 

regarding the ECCF surveillance camera clocks, which were 

not synchronized. Neves used “arithmetic” to synchronize 

the cameras’ time stamps ex post. App. 153. His testimony

was based on subtraction, not “scientific, technical, or other 

specialized knowledge within the scope of Rule 702.”

Fed. R. Evid. 701(c); see also United States v. Georgiou, 777 

F.3d 125, 144 (3d Cir. 2015) (holding that comparing stock 

quantities and prices did not require specialized knowledge). 

Thus, the District Court did not abuse its discretion in 

admitting Neves’s lay opinion testimony. 

C

Finally, Shaw raises a cursory constitutional speedy 

trial claim. Where, as here, a defendant fails to raise a Sixth 

Amendment claim in the district court, we review for plain 

error. See United States v. Cotton, 535 U.S. 625, 631 

(2002).16

 

16

 The plain error test requires (1) an error; (2) that is 

“clear or obvious” and (3) “affected the defendant’s 

substantial rights, which in the ordinary case means he or she 

must ‘show a reasonable probability that, but for the error,’ 
25

In assessing a constitutional speedy trial claim, we 

consider the “[l]ength of delay, the reason for the delay, the 

defendant’s assertion of his right, and prejudice to the 

defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972). 

“None of these factors is . . . ‘necessary or sufficient’ . . . and 

the factors ‘must be considered together with such other 

circumstances as may be relevant.’” United States v. Battis, 

589 F.3d 673, 678 (3d Cir. 2009) (quoting Barker, 407 U.S. at 

533).

The first factor, the length of the delay, “trigger[s]” the 

speedy trial analysis. Doggett v. United States, 505 U.S. 647, 

651 (1992) (citing Barker, 407 U.S. at 530-31); see also

Hakeem v. Beyer, 990 F.2d 750, 760 (3d Cir. 1993) (holding 

that “though rigid time limitations have been rejected in 

analyzing the constitutional right to a speedy trial,” a delay of 

fourteen months triggers an analysis of the remaining Barker

factors). In Shaw’s case, the Government concedes that a

delay of twenty-seven months was sufficient to trigger an 

analysis of the remaining Barker factors.

 

the outcome of the proceeding would have been different.” 

Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 

(2016) (quoting United States v. Dominguez Benitez, 542 U.S. 

74, 76, 82 (2004)). If these conditions are met, we will 

exercise our discretion to correct the error if it “seriously 

affects the fairness, integrity or public reputation of judicial 

proceedings.” Id. (quoting United States v. Olano, 507 U.S. 

725, 736 (1993)). 
26

But rather than argue the Barker factors, Shaw merely 

contends that prejudice can be presumed from the length of 

the delay. See Doggett, 505 U.S. at 655 (recognizing “that 

excessive delay presumptively compromises the reliability of 

a trial in ways that neither party can prove or, for that matter, 

identify”). However, even assuming arguendo that the delay 

in Shaw’s case was presumptively prejudicial, Doggett

further provides that “such presumptive prejudice cannot 

alone carry a Sixth Amendment claim without regard to the 

other Barker criteria.” Id. at 656; see also United States v. 

Dent, 149 F.3d 180, 185 (3d Cir. 1998). Thus, there is no

clear error.17

 

17 Shaw further argues, fleetingly, that that the 

Government failed to disclose a letter written by E.S., and 

that the District Court erred by declining to permit the playing 

of a supposedly corresponding audio recording. Arguments 

raised in such a cursory fashion, without adequate citation to 

the record and authority, are deemed waived. See Kost v. 

Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993); Fed. R. App. P. 

28(a)(8)(A). And regardless, both contentions lack merit. As 

reference to the letter drafted by E.S., Shaw cites the 

Presentence Investigation Report. That report contains a 

victim impact statement requested by the Probation Office in 

preparation for sentencing. Nothing in the Presentence 

Report, which is the only record support cited by Shaw, 

suggests that E.S. prepared this statement or provided it to the 

Government prior to entry of the jury verdict. With respect 

to the audio recording, the record establishes that trial counsel 

initially proposed to play a portion of E.S.’s recorded 

interview, outside the presence of the jury, to refresh her 

recollection. However, counsel withdrew the request. As 

such, neither issue presents a basis for relief.
27

IV

The judgment of the District Court will be affirmed.