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United States v. Cowden

United States Court of Appeals, Fourth Circuit

February 16, 2018

MARK COWDEN, Defendant-Appellant.

          Argued: December 5, 2017

         Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:16-cr-00024-FPS-JES-1)


          Martin Patrick Sheehan, SHEEHAN & NUGENT, PLLC, Wheeling, West Virginia, for Appellant.

          Christopher Chen-Hsin Wang, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

         ON BRIEF:

          T.E. Wheeler, II, Acting Assistant Attorney General, Thomas E. Chandler, Appellate Section, Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

          Before KEENAN, DIAZ, and HARRIS, Circuit Judges.

          BARBARA MILANO KEENAN, Circuit Judge.

         Mark Cowden, a former lieutenant with the Hancock County Sheriff's Office (HCSO) in West Virginia, was charged with deprivation of rights under color of law, in violation of 18 U.S.C. § 242, and knowingly making a false statement to impede a federal investigation, in violation of 18 U.S.C. § 1519. In a jury trial, the evidence showed that in the course of his police duties, Cowden assaulted Ryan Hamrick following his arrest on various charges. The jury convicted Cowden on the Section 242 count of deprivation of rights, but acquitted Cowden on the Section 1519 count of making a false statement.

         On appeal, Cowden primarily argues that: (1) the district court erred in admitting evidence of Cowden's two prior uses of force; (2) the evidence was insufficient to support his felony conviction under Section 242; (3) the jury improperly was instructed on the elements of the Section 242 offense; and (4) Cowden improperly was held liable for injuries Hamrick sustained at the time he was arrested by another law enforcement officer. Upon our review, we affirm the district court's judgment.


         Before trial, the government filed notice of its intent under Federal Rule of Evidence 404(b) to introduce evidence of Cowden's use of force during two prior criminal investigations. The government sought admission of this evidence to establish Cowden's motive and intent at the time he confronted Hamrick. These prior uses of force both occurred less than two years before the confrontation with Hamrick.

         Cowden filed a motion in limine seeking to exclude this evidence. After a hearing, the district court denied Cowden's motion. Upon direction by the district court, both parties submitted proposed limiting instructions informing the jury regarding the proper consideration of the Rule 404(b) evidence.

         The evidence at trial showed that on January 26, 2015, at about 11:00 pm, West Virginia State Police Trooper Michael Hoder initiated a traffic stop of a vehicle for speeding and a taillight violation. After the driver of the vehicle, Ryan Hamrick, failed a field sobriety test, Hoder attempted to place Hamrick under arrest. Hamrick resisted and engaged in a physical altercation with Hoder. Hoder eventually subdued Hamrick and completed the arrest. At that time, Hoder noticed blood in the snow, dried blood on Hamrick's nose or cheek, and a "goose egg" on Hamrick's forehead. However, Hoder also observed that Hamrick was not actively bleeding. Hoder did not suffer any significant injuries as a result of the encounter with Hamrick.

         Prior to the arrest, Trooper Hoder had called for additional law enforcement assistance. Chester County Patrolman Brandon Whittaker arrived at the scene shortly after Hoder had effectuated Hamrick's arrest, and drove Hoder and Hamrick to the HCSO station for processing. Hoder testified that although Hamrick was yelling during the drive, Hamrick did not offer any further resistance and did not speak or act in a threatening manner.

         At the HCSO station, the defendant Mark Cowden, a HCSO lieutenant, was waiting to process Hamrick upon his arrival, and learned that Hamrick had resisted Hoder's efforts in placing Hamrick under arrest. Hoder had not related in detail the circumstances of the arrest, but Cowden was concerned that Hamrick had the "potential to get very dangerous" based on what he already had heard about Hamrick's conduct.

         As Cowden and three other officers were waiting for Hamrick to arrive, another officer heard Cowden state, "[Hamrick's] not going to act that way with us, this is our house, play by our rules." Another officer, Jeffrey McIntyre, testified that Cowden's mood was unusually hostile.

         When Hamrick arrived at the station in a patrol car, he was restrained in handcuffs with his hands secured behind his back. Five of the officers present testified that Hamrick did not offer any resistance, and was not threatening them either physically or verbally as he was removed from the vehicle. Four of these officers also observed that Hamrick was not actively bleeding at that time.

         Cowden and Eric Cline, a sergeant with the HCSO, held Hamrick by his arms to escort him inside the station. One officer opened the glass doors while Whittaker, Hoder, and a third officer followed behind. Hamrick was not physically resisting the officers as he entered the lobby. Although Hamrick displayed a loud and drunken demeanor, the officers other than Cowden did not perceive Hamrick as a threat, particularly because he was fully restrained and was surrounded by several law enforcement officers.

         After Hamrick and the officers entered the lobby of the building, Hamrick attempted to pull away from Cowden and Cline. Neither Hoder nor the other officers interpreted this move as a threat, and Hoder viewed Hamrick's actions as "[m]ore or less just being a pain." However, in response to Hamrick's movement, Cowden pulled Hamrick toward the elevator and threw him against the wall.

         While Hamrick was facing the wall, still in handcuffs and not resisting the officers, Cowden pulled Hamrick's head away from the wall and slammed his head and face back into the wall. Cowden again stated that the HCSO was "our house, " and that Hamrick had to "play by our rules." According to Cline, Cowden's tone of voice and use of force indicated that he was losing control. Cline testified that he was in a "state of shock" due to Cowden's behavior, and that he "didn't see any reason for force ...

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