United States Court of Appeals

For the Eighth Circuit

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No. 16-4288

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Thomas Peterson

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the District of Nebraska - Lincoln

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 Submitted: November 17, 2017

 Filed: April 4, 2018 

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Before BENTON, SHEPHERD, and KELLY, Circuit Judges.

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SHEPHERD, Circuit Judge.

Defendant Thomas Peterson, a former probation officer, appeals his conviction

on four counts of the deprivation of his female probationers’ civil rights in violation

of 18 U.S.C. § 242 and his subsequent sentence of 108 months imprisonment. 

Peterson argues:(1) there wasinsufficient evidence to support his convictions;(2) the
district court erred in rejecting his theory of defense instruction; (3) the district court

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procedurally erred in calculating his sentence; and (4) his sentence is substantively

unreasonable. We disagree and affirm Peterson’s conviction and sentence. 

I. Background

Peterson was a state deputy probation officer with the District 9 Probation

Office in Kearney, Nebraska. From approximately October 2010 through January

2014, Peterson’s caseload was comprised entirely of the highest risk

offenders—offenders who are deemed most likely to re-offend based upon their

criminal history, record of compliance with supervision, and alcohol and drug abuse. 

It was Peterson’s job to supervise these offenders, including conducting home visits,

monitoring compliance with terms of release, and reporting the offenders’ progress

to the court. A report that the offenders failed to comply with the terms of their

supervision could result in the probationers having their probation revoked, sending

the offenders to jail or prison. 

During the same time period, Peterson engaged in inappropriate sexual acts and

inappropriate sexual contact with several of his female probationers. Peterson would 2

conduct home visits alone, despite the Probation Office’s policy to send two officers,

and would engage in inappropriate sexual behavior during those visits. He also

engaged in sexual conduct with probationers in his office during their probation

meetings. Peterson would warn the probationers when random drug tests were going

to be conducted and when other probation officers were going to perform

unannounced home visits, using this information to pressure his probationers into

The Honorable Richard G. Kopf, United States District Judge for the District 1

of Nebraska.

The phrases “sexual act[s]” and “sexual contact” are used in accordance with

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their definitions in 18 U.S.C. § 2246(2)(A)-(C), (3). 

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repaying him with sexual favors. Peterson further coerced his probationers by

frequently commenting on the power he had over themand his ability to put offenders

in jail. At trial, the probationers all testified that they feared standing up to Peterson

or rejecting his advances because of the authority that he had over them. 

On July 29, 2016, a jury convicted Peterson of four counts of Deprivation of

Civil Rights under 18 U.S.C. § 242 and one count of making False Statements to a

Government Agent under 18 U.S.C. § 1001. Prior to submitting the case to the jury,

Peterson requested a theory of defense jury instruction, which the district court

denied. Following his conviction, the district court varied upward from the

otherwise applicable Sentencing Guideline range and sentenced Peterson to 108

months imprisonment. Peterson appeals.

II. Discussion

Peterson first makes a blanket argument that there was insufficient evidence

to support his convictions for any of the four counts of depriving his female

probationers of their civil rights. “We review challenges to the sufficiency of the

evidence de novo.” United States v. Spight, 817 F.3d 1099, 1102 (8th Cir. 2016)

(internal quotation marks omitted). In doing so, “we view the facts in the light most

favorable to the verdict, and affirm if any rational [factfinder] could have found the

defendant guilty beyond a reasonable doubt.” Id. (alteration in original) (internal

quotation marks omitted). We also do “not pass upon the credibility of witnesses or

the weight to be given their testimony because [c]redibility determinations are

uniquely within the province of the trier of fact, and are entitled to special deference.” 

Id. (alteration in original) (internal quotation marks omitted). 

“Section 242 is a . . . civil rights statute making it criminal to act (1) ‘willfully’

and (2) under color of law (3) to deprive a person of rights protected by the

Constitution or laws of the United States.” United States v. Lanier, 520 U.S. 259, 264

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(1997). An action is under color of law if the defendant misused power that he

“possessed by virtue ofstate law and [the action was] made possible only because the

wrongdoer [was] clothed with the authority of state law.” United States v. Classic,

313 U.S. 299, 326 (1941); see also Neighborhood Enters., Inc. v. City of St. Louis,

540 F.3d 882, 885 (8th Cir. 2008). And, in Hawkins v. Holloway, we held that a

sheriff’s “repeated intentional touching of [the victim’s] breasts” was sufficient to

find that he deprived the victim of her constitutional rights. Hawkins, 316 F.3d 777,

785 (8th Cir. 2003). 

Here, there is no question that Peterson’s conduct was willful, as he does not

deny that he intentionally engaged in sexual conduct with the victims; thus, the first

element is satisfied. However, Peterson does argue that the evidence is insufficient

to show that the victims acquiesced to his sexual advances as a result of his abuse of

his state law authority. Contrary to Peterson’s contention, the record is replete with

evidence that he was acting under color of law, including testimony from the

probationers involved that the sexual encounters occurred in his office and on home

visits while Peterson was on duty and acting in the capacity of a probation officer. 

Furthermore, all of the probationers testified that they acquiesced because Peterson

had the power to cause them to be jailed and threatened them with that power. Thus,

we find that the second element is satisfied. See Spight, 817 F.3d at 1102 (stating

that we do not pass on the credibility of witnesses or the weight given to their

testimony); see also Johnson v. Phillips, 664 F.3d 232, 240 (8th Cir. 2011) (finding

that a police officer acted under the color of law when he “first effected a traffic stop,

arrested [a woman], . . . searched her car, [and] [t]hen, while wearing a police uniform

and operating a police car,” released her, led her to an empty parking lot, and

committed an assault); United States v. Giordano, 442 F.3d 30, 45 (2d Cir. 2006)

(finding that a mayor acted under the color of law when, after sexually assaulting his

victims, he “threatened his victims by invoking a ‘special authority’ to undertake

retaliatory action” like throwing themin jail or harming their families if they reported

him); United States v. Contreras, 950 F.2d 232, 242-43 (5th Cir. 1991) (finding that

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an on-duty police officer acted under color of law when he sexually assaulted a

woman after stopping her car and detaining her to transport her to the Immigration

and Naturalization Service); Griffin v. City of Opa-Locka, 261 F.3d 1295, 1304-06

(11th Cir. 2001) (finding that the city manager raped a city employee under color of

law when he “invoked his authority as City Manager to create the opportunity to be

alone with” her; “reminded her of his authority by saying ‘I can’t believe you are

telling me no after everything that I have done for you’”; and “continued to invoke

his authority over [the victim] to harass her and humiliate her” by “summon[ing] her

to his office” and asking for a hug and making inappropriate commentsin front of coworkers). 

Finally, Peterson’s conduct with the several victims was more egregious than

the conduct in Hawkins, which we found sufficient to support a Fourteenth

Amendment substantive due process claim. See Hawkins, 316 F.3d at 785. Because

the record provides ample evidence that Peterson engaged in conduct that deprived

his victims of their civil rights, we find that the third element is met. Therefore, we

hold that there was sufficient evidence for the district court to find that Peterson

committed four counts of depriving his probationer victims of their civil rights under

18 U.S.C. § 242. 

Second, Peterson argues that the district court erred in rejecting his theory of 

defense instruction. A criminal defendant is “entitled to a theory of defense

instruction if it is timely requested, is supported by the evidence, and is a correct

statement of the law.” United States v. Chatmon, 742 F.3d 350, 354 (8th Cir. 2014)

(internal quotation marks omitted). “We review a district court’s rejection of

defendant’s proposed instruction for abuse of discretion . . . .” Id. (internal quotation

marks omitted).

Peterson argues that the jury should have been instructed that, in order to be

convicted of depriving his probationers of their civil rights, he must have known both

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that he used his position of power to cause the victims to submit to his demands and

that the victims consented because of that influence. We are unable to find any

authority supporting Peterson’s instruction as a correct statement of the law, and

Peterson does not cite any authority in support of his argument. See Giordano, 442

F.3d at 46-47 (rejecting the defendant’s defense that the victims’ fear “that he could

use his power as mayor to harm them and their families cannot be relevant to whether

he acted ‘under color of law’” because the defendant “actively and deliberately used

his apparent authority as mayor to ensure that the victims did not resist or report the

ongoing abuse”). Therefore, we find that the district court did not abuse its discretion

in rejecting Peterson’s proposed defense instruction. See United States v. Alvarez,

878 F.3d 640, 641 (8th Cir. 2017) (per curiam) (concluding that the defendant’s

argument was without merit when, in part, he failed to cite authority supporting his

contention); United States v. Mendoza-Gonzalez, 520 F.3d 912, 918 n.4 (8th Cir.

2008) (“Mendoza-Gonzalez cites no authority in support of this argument. We

therefore reject this argument.”), overruled on other grounds, 556 U.S. 1232 (2009).

Third, Peterson argues that the district court committed a procedural error by

improperly calculating his Sentencing Guidelines range. “When reviewing the

district court’s calculation of the sentencing guidelines advisory sentencing range,

[w]e review the district court’s factual findings for clear error and its construction and

application of the Guidelines de novo.” United States v. Edwards, 820 F.3d 362, 365

(8th Cir. 2016) (alteration in original) (internal quotation marks omitted). Assuming

without deciding that the district court erred in calculating Peterson’s Sentencing

Guidelines range, we hold that the error was harmless. When the district court

explicitly states that it would have imposed the same sentence of imprisonment

regardless of the underlying Sentencing Guideline range, “any error on the part of the

district court is harmless.” United States v. Davis, 583 F.3d 1081, 1094-95 (8th Cir.

2009); see also United States v. McGrew, 846 F.3d 277, 280 (8thCir. 2017) (“[W]hen

the court derives its ultimate sentence apart from the Guidelines and offers an

alternative explanation for its sentence, such explanations may serve to prove other

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identified sentencing errors harmless.” (internal quotation marks omitted)). Here, the

district court specifically stated at the sentencing hearing that it would have imposed

the same sentence regardless of the Sentencing Guidelines calculations. Therefore,

we find that any procedural error on the part of the district court in calculating

Peterson’s sentence was harmless. See id. 

Fourth, Peterson argues that his sentence was substantively unreasonable.

“When we review a defendant’s sentence to determine whether it is unreasonable with

regard to the application of 18 U.S.C. § 3553(a), we apply a [deferential] abuse-ofdiscretion standard.” United States v. Ford, 705 F.3d 387, 389 (8th Cir. 2013)

(internal quotation marks omitted). Furthermore, “[t]he court has substantial latitude

to determine how much weight to give the various factors under § 3553(a).” Id.

(quoting United States v. Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir. 2009)); see

also United States v. Parker, 762 F.3d 801, 812 (8th Cir. 2014) (“Where [a] district

court in imposing a sentence makes an individualized assessment based on the facts

presented, addressing the defendant’s proffered information in its consideration ofthe

§ 3553(a) factors, such sentence is not unreasonable.” (alteration in original) (internal

quotation marks omitted)). 

The transcript of Peterson’s sentencing hearing shows that the district court

carefully considered the § 3553(a) factors. The court made specific reference to the

nature of the crime and the characteristics of the defendant, stating that Peterson

“coldly calculated” taking “advantage of especially vulnerable women” placed under

his supervision. The court also stated that it imposed the sentence to reflect the

seriousness of Peterson preying on these vulnerable women, “to promote respect for

the law, to provide for just punishment, to afford both specific and general

deterrence,” and to protect the public against Peterson. Accordingly, we find that the

district court properly exercised its discretion in weighing the various § 3553(a)

factors and that Peterson’s sentence is not substantively unreasonable. See Parker,

762 F.3d at 812.

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III. Conclusion

For the foregoing reasons, we affirm the district court in all respects.

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