Argued: December 5, 2017
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)
Patrick Sheehan, SHEEHAN & NUGENT, PLLC, Wheeling, West
Virginia, for Appellant.
Christopher Chen-Hsin Wang, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
Wheeler, II, Acting Assistant Attorney General, Thomas E.
Chandler, Appellate Section, Civil Rights Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
KEENAN, DIAZ, and HARRIS, Circuit Judges.
BARBARA MILANO KEENAN, Circuit Judge.
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.
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
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
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 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.
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.
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
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
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.
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
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.
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 ...