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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Darrell E. McCoy, 

Defendant. 

No. CR-17-01410-PHX-DLR 

ORDER 

Before the Court is Defendant Darrell E. McCoy’s post-trial motion. (Doc. 122.) 

Defendant’s post-trial motion is styled as a motion for judgment notwithstanding the 

verdict, a motion to vacate the judgment, and a motion to dismiss multiplicitous counts. 

(Id.) The motion is fully briefed. For the reasons stated below, Defendant’s motion is 

denied. 

I. Background 

In 2016, Defendant, a seventeen-year correctional officer at the Federal Correctional 

Institution (“FCI”) in Phoenix, Arizona, was responsible for overseeing inmate work 

crews. Defendant’s crews were responsible for the prison’s repairs, maintenance and 

landscaping. Because of staffing shortages, Defendant found himself working alone with 

the female inmates, managing two shops with little oversight or assistance from other 

correctional officers. 

In approximately September 2016, an inmate under his supervision, S.S., the “lead” 
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inmate with whom he had regular daily contact, unexpectedly hugged Defendant from 

behind. Rather than treat it as a disciplinary violation, as he admittedly should have, 

Defendant became romantically involved. According to Defendant: 

I just got emotionally attached. And it was kind of a romantic, 

um, fantasy. Um, I swear I had no intentions on it going any 

farther than that. And with each time something would 

happen, I would realize that if I were to stop it now, she may 

get upset and, you know, turn me in. 

(Doc. 131-1 at 9.) 

During the next two to three months, while Defendant and S.S. continued working 

together they often hugged and kissed.1

 Defendant, knew that sexual contact by a 

correctional officer with an inmate is illegal and claims that he tried to avoid it. However, 

S.S. attempted to take the relationship further than just hugging and kissing. She began 

touching Defendant and caused Defendant to touch her, by grabbing his hand and placing 

it on her body in areas that are defined by statute as sexual contact. At trial, S.S. testified 

that Defendant told her to stop and that he pulled away because “he [didn’t] want to get in 

trouble,” but she did not stop, testifying, “I guess you can say I like a challenge.” (Doc. 

117 at 54.) 

Defendant was charged by way of a superseding indictment with five counts of 

abusive sexual contact of a ward in violation of 18 U.S.C. §§ 2244(a)(4) and 2246. (Doc. 

48.) The superseding indictment alleged that “on or about September 29, 2016, through 

December 15, 2016,” Defendant had sexual contact with a female inmate in his custodial 

authority in five locations in FCI. (Id.) The superseding indictment identified a location 

for each count as follows: 

Count Location

1 Within a vehicle on FCI-Phoenix

2 In or near garage on FCI-Phoenix

 1

 Defendant was charged with violating 18 U.S.C. § 2246, which does not define 

hugging and kissing as sexual contact. 
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3 In or near maintenance building (a/k/a workshop) on FCI-Phoenix

4 In or near office within maintenance building (a/k/da workshop) on 

FCI- Phoenix

5 In or near area refered to as "bone yard" on FCI-Phoenix

Following a three-day trial, the Court granted Defendant’s motion for judgment of 

acquittal under Federal Rule of Criminal Procedure Rule 29 as to Count 2, and dismissed 

Count 4, finding it multiplicitous.2

 (Doc. 100.) The jury deliberated on Counts 1, 3 and 5, 

and found Defendant guilty of Counts 1 and 3 and not guilty of Count 5. 

II. Motion for Judgment of Acquittal 

A. Legal Standard 

 Defendant’s motion for judgment of acquittal was brought pursuant Rule 29(c)(1). 

A challenge to the sufficiency of the evidence under Rule 29(c) requires the court to view 

the evidence in the light most favorable to the prosecution and ask if “any rational trier of 

fact could have found the essential elements of the crime beyond a reasonable doubt.” 

United States v. Hursh, 217 F.3d 761, 767 (9th Cir. 2000). “[E]vidence is insufficient to 

support a verdict where mere speculation, rather than reasonable inference supports the 

government’s case, or where there is a total failure of proof of a requisite element.” United 

States v. Katakis, 800 F.3d 1017, 1023 (9th Cir. 2015) (internal quotation and citation 

omitted). The government is not required to rebut all reasonable interpretations of the 

evidence that would point to the defendant’s innocence or rule out every hypothesis except 

guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 326 (1979). 

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 The Court dismissed Count 4 as multiplicitous because in proving that Defendant had contact “in or near office within maintenance building” the prosecution would necessarily establish that Defendant had contact “in or near maintenance building.” The Court’s ruling limited its consideration to the face of the indictment. 
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B. Discussion 

The crime of abusive sexual contact of a ward requires proof of, among other things, 

sexual contact. Sexual contact is defined as “the intentional touching . . . of the genitalia, 

breast, inner thigh, or buttocks of an person with the intention to . . . arouse or gratify sexual 

desire of any person.” 18 U.S.C. § 2246(3) (emphasis added). 

Defendant does not dispute the existence of an inappropriate relationship with the 

victim, an inmate. Nor does he dispute the evidence of touching, much of which occurred 

in locations other than the locations identified in Counts 1 and 3 of the superseding 

indictment. For purposes of this motion, however, it is only evidence of touching that 

occurred in the locations identified in Counts 1 and 3 that are at issue. 

1. Count 1: Sexual Contact Within the Vehicle 

Defendant argues that the evidence does not establish that: (1) the touching in the 

vehicle was of a statutory body part; (2) Defendant intended the touching to occur; and (3) 

the touching was done with the intent to arouse or gratify sexual desire of any person. 

(Doc. 122 at 9-10.) Specifically, Defendant argues that S.S. initiated the contact and 

Defendant immediately pulled his hand away, and there is no evidence establishing that 

when Defendant touched S.S.’s thigh that it was her inner thigh. (Id.) 

Although Defendant’s statement and S.S.’s testimony differed slightly, they were 

generally consistent. That is, both stated that while in the truck S.S. pulled Defendant’s 

hand to her crotch area and he pulled it away. S.S. testified that it occurred on only one 

occasion, and that she put the Defendant’s hand on her thigh “[c]loser to my, um, pubic 

area.” (Doc. 117 at 51-52.) Whereas Defendant indicated in his statement to investigators 

that S.S. pulled his hand to her crotch area 2-3 times. (Doc. 131-1 at 44.) Defendant also 

stated, “I would squeeze the thigh and pull away because we’re driving and someone’s 

going to see.” (Id. at 42.) 

In addition to the direct evidence, the testimony of S.S. and Defendant’s statement, 

the prosecution introduced circumstantial evidence of Defendant’s intent. For instance, the 

repetitive nature of the touching; Defendant’s note to S.S. describing romantic sexual 
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activity; text message exchanges for a four-month period after S.S.’s release; and 

Defendant’s denial of the underlying facts when first confronted by investigators. 

The question of whether Defendant touched S.S.’s inner thigh and what his intent 

was when he touched it is a question of fact. The jury was properly instructed that the 

definition of sexual contact requires intentional touching for the intended purpose of 

arousing or gratifying the sexual desire of any person. (Doc. 106 at 10.) In reaching its 

verdict the jury made a factual determination that in the vehicle, when S.S. pulled and 

placed the Defendant’s hand to her thigh, close to her pubic area, Defendant intended to 

touch her inner thigh and intended to do so to arouse or gratify sexual desire. 

Viewing the testimony of S.S., Defendant’s admissions, and the circumstantial 

evidence discussed above in the light most favorable to the prosecution, the Court finds 

that any rational trier of fact could have found the essential elements of the crime beyond 

a reasonable doubt. Because Defendant could have prevented S.S. from pulling his hand 

to her thigh, the repetitive nature of her pulling his hand to her thigh, and that Defendant 

squeezed the thigh rather than immediately pulling away, a rational trier of fact could have 

found that although S.S. pulled Defendants hand to her thigh near her pubic area, he 

willingly participated, intentionally touching her inner thigh to arouse or gratify his or 

S.S.’s sexual desire. 

2. Count 3: Sexual Contact In or Near the Maintenance Building 

Defendant argues that the evidence of sexual contact in the maintenance building, 

which included an office and shop, amounted to nothing more than a single playful butt 

tap, not meant to arouse or gratify sexual desire of any person. (Doc. 122 at 11.) 

The sole evidence of Defendant touching S.S’s buttocks in the maintenance building 

is the testimony of S.S. This testimony was inconsistent. For example: 

Q: [When you were kissing and touching] were his hands around you? 

A: Yes. 

Q: Were his hands on your buttocks? 

A: Not all the time. 
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Q: Sometimes? 

A: Sometimes. 

Q: There were occasions where his hands were on your buttocks while you were in 

th[e] shop? 

A: No. 

(Doc. 117 at 40-41.) 

 Q: And when you were kissing and hugging, you were embracing; is that right? 

 A: Yeah. 

 Q: Okay. And his hands were around you? 

A: No, because when it would happen, he would be sitting down and I would come 

from behind. 

(Id. at 43.) 

 Q: You mentioned that he also touched your buttocks; is that right? 

 A: Yes. 

 Q: Okay. Did that happen in the office? 

 A: Yeah. 

 Q: It did happen in the office? 

 A: Yeah, but it was more like a tap. 

(Id. at 44.) 

Q: When Mr. McCoy touched your buttocks, did that happen most often in the 

shop? 

A: No, ma’am. 

Q: Where did it happen most often? 

A: Out in the shed. In the shed, in the boneyard, random places. I don’t know. I 

can’t really remember it all. 

(Id. at 46.) 

Q: You said earlier that you were joking and laughing on the times where he tapped 

your - - or touched your butt; is that right? 
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 A: I said that we were joking and we were laughing. 

(Id. at 53.) 

Despite these apparent inconsistencies, at a minimum, S.S.’s testimony established 

at least one “butt tap” in the office of the maintenance building. Defendant recognizes as 

much in his motion. When determining Defendant’s intent, the jury is not bound by the 

interpretation of S.S. that it was just a playful touch nor is it limited in its consideration of 

the circumstantial evidence. Thus, when viewing the evidence in the light most favorable 

to the prosecution any rational trier of fact could have found beyond a reasonable doubt 

that Defendant’s touching of S.S.’s buttocks in the office was done with the intent to arouse 

or gratify sexual desire.3

 

III. Motion for New Trial 

A. Legal Standard 

Defendant’s motion for new trial was brought pursuant to Fed. R. Crim P. 33(a), 

which states: “upon the defendant’s motion, the court may vacate any judgment and grant 

a new trial if the interest of justice so requires.” Rule 33(a) gives the trial court much 

broader power to grant a new trial than its power to grant a motion for a judgment of 

acquittal under Rule 29. United States v. Kellington, 217 F. 3d 1084, 1095 (9th Cir. 2000). 

The motion for new trial does not require the district court to view the evidence in the light 

most favorable to the prosecution but allows the district court to weigh the evidence and 

evaluate the credibility of the witnesses. Id. “If the court concludes that, despite the 

abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates 

sufficiently heavily against the verdict that a serious miscarriage of justice may have 

occurred, it may set aside the verdict, grant a new trial, and submit the issue for 

determination by another jury.” Kellington, 217 F. 3d at 1097. 

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 In his reply brief, Defendant includes a picture of Jerry Jones, the owner of the National Football League’s Dallas Cowboys, tapping the buttocks of quarterback Tony Romo. Defendant argues “[i]f tapping the buttocks of another constitutes abusive, sexual 

conduct, then several professional sports owners, coaches, and players should be rounded 

up and charged with abusive sexual contact.” (Doc. 128 at 8.) This hail-mary argument misses the mark, falling incomplete. The statute at issue focuses on preventing prison guards from engaging in sexual touching with inmates; tapping the buttocks in the context 

of athletics, professional or otherwise, is inapposite. 
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B. Discussion 

Defendant’s motion for new trial, like his motion for acquittal, argues the lack of 

evidence to sustain the verdict. Defendant argues that the prosecution failed to prove that 

he “intentionally touched S.S. in any of the places on her body listed in the statute” and 

that it “failed to prove that any of that touching occurred with [Defendant’s] intent to arouse 

or gratify the sexual desire of a person.” (Doc. 22 at 12.) 

The Court recognizes that its power to grant a motion for new trial is much broader 

than its power to grant a motion for judgment of acquittal and that it may weigh the 

evidence and in so doing evaluate the credibility of witness, Kellington, 217 F. 3d at 1095, 

but the facts were undisputed. There was one witness to the events in question, S.S. The 

only other evidence of the events was the statement taken from Defendant. There was no 

disputed testimony. The dispute goes only to the interpretation of the evidence and whether 

it was sufficient to establish the elements of the offense. 

The Court has weighed the evidence and the credibility of the witnesses, and the 

Court does not find that the evidence preponderates sufficiently heavily against the verdict 

that a serious miscarriage of justice may have occurred. 

IV. Motion to Dismiss Multiplicitous Counts4

A. Legal Standard 

The Fifth Amendment provides that no person shall “be subject for the same offence 

to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. Under the Double 

Jeopardy Clause, “multiple punishments for the same offense” are prohibited. Whalen v. 

United States, 445 U.S. 684, 688 (1980); United States v. Davenport, 519 F.3d 940, 943 

(9th Cir. 2008). “An indictment is multiplicitous when it charges multiple counts for a 

single offense, thereby resulting in two penalties for one crime and raising double jeopardy 

concerns.” United States v Mancuso, 718 F.3d 780, 791 (9th Cir. 2013). 

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 Federal Rule of Criminal Procedure 12(b)(3)(B)(ii) requires a defendant to raise a multiplicity objection to an indictment “by pretrial motion if the basis for the motion is 

then reasonably available.” Defendant did so here, and the Court denied the motion. 

(Docs. 43, 61.) Defendant’s counsel orally re-raised the motion after trial and the Court dismissed Count 4 as multiplicitous. Now, Defendant raises this argument yet again in his post-trial motion. 
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“Stating the rule against multiplicity is a relatively simple proposition; discerning 

the proper judicial test for implementing the rule is, however, more difficult.” United 

States v. Christner, 66 F.3d 922, 927 (8th Cir. 1995). Two distinct tests have emerged in 

determining whether Congress intended to allow for cumulative punishments of statutory 

violations. Where a challenged indictment charges the same conduct under different 

statutes, courts must apply the test detailed in Blockburger v. United States, 284 U.S. 299, 

304 (1932), and determine if the statutes have the same elements. See United States v. 

Zalapa, 509 F.3d 1060, 1062 n.1 (9th Cir. 2007). If, however, the challenged indictment 

charges the same conduct under the same statute, courts are instead tasked with 

determining what Congress intended to be an “allowable unit of prosecution.” Id. at 1062. 

Courts need not apply either of the aforementioned tests, however, where each count 

brought against defendant is for distinct conduct. See Powell v. Ryan, No. 14-CV-2043-

TUC-RM, 2016 WL 4470366, at *5 (D. Ariz. Aug. 25, 2016). In considering a motion to 

dismiss, “the Court is limited to the face of the indictment and must accept the facts alleged 

in that indictment as true.” United States v. Nosal, No. 08-CR-237-MHP, 2009 WL 

981336, 2009 WL 981336, at *2 (N.D. Cal. April 13, 2009) (citing Winslow v. United 

States, 216 F.2d 912, 913 (9th Cir. 1955)). 

B. Discussion 

Here, Defendant asks the Court to dismiss Count 1 or Count 3 of the superseding 

indictment as multiplicitous because the conduct that the jury found to have occurred in 

the vehicle, “could easily have also been based on the conduct ‘in or near’ the maintenance 

building.” (Doc. 143 at 5.) In determining whether the indictment contains multipliticous 

charges, however, the Court is limited to the face of the indictment and does not consider 

the evidence presented at trial. Count 1 concerns conduct that occurred in the vehicle, 

while Count 3 concerns conduct that occurred in or near the maintenance building. Each 

count constitutes an entirely separate crime that could be proven without necessarily 

establishing the other. See Powell v. Ryan, No. 14-CV-2043-TUC-RM, 2016 WL 

4470366, at *5 (D. Ariz. Aug. 25, 2016); Loeblein v. Dormire, 229 F.3d 724, 727 (8th Cir. 
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2000) (holding that an indictment charging separate counts for each sexual assault was not 

multiplicitous because each occurrence was a separate act). Therefore, Counts 1 and 3 are 

not multiplicitous. 

IT IS ORDERED that Defendant’s Motion for Judgment Notwithstanding the 

Verdict (Doc. 122), is DENIED. 

IT IS FURTHER ORDERED that Defendant’s Motion to Vacate the Judgment 

(Doc. 122) is DENIED. 

IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss Multiplicitous 

Counts (Doc. 122) is DENIED. 

Dated this 24th day of January, 2019. 

Douglas L. Rayes 

United States District Judge