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Ohio Jail Guard’s Excessive Force Conviction Affirmed

The Sixth Circuit Court of Appeals has affirmed a former jail guard’s criminal convictions for using excessive force on three prisoners.

Michael J. Budd, once second-in-command of the Mahoning County, Ohio Sheriff’s Department, was charged in a four-count indictment with subjecting prisoners to excessive force. Count one alleged conspiracy to deprive pretrial detainee Tawhon Easterly of his constitutional rights under color of law, in violation of 18 U.S.C. § 242, and witness tampering in violation of 18 U.S.C. § 1512(b)(2). The remaining counts charged Budd with violations of § 242 with respect to Easterly, sentenced prisoner Brandon Moore, and pretrial detainee Stephan Blazo.

A jury convicted Budd of count one but deadlocked on the remaining counts. He was then retried and convicted of each of those counts. On appeal, Budd challenged count three, “because the indictment referred to a Fourteenth Amendment basis for the right to be free from excessive force, while the jury instructions referred to an Eighth Amendment basis for the right.” Budd claimed this amounted to an improper constructive amendment of the indictment.

Although it was “a close question,” the Sixth Circuit found that the difference in language was merely a variance rather than a constructive amendment. In reaching that conclusion, the Court observed that “the indictment and jury instructions describe the same actions, and they specify an offense against the same statute, 18 U.S.C. § 242.” The instruction merely referred “to different standards under which a violation of § 242 can be evaluated.” It was “most reasonable to conclude that the … excessive force standards describe two alternative methods by which one crime could be committed, rather than two crimes.” Additionally, Budd was not prejudiced by the change.

The Court also rejected Budd’s argument that the jury instructions on counts one and two constructively amended those counts. Finding that Budd had waived his claim and that it lacked merit, the Court also refused to find the jury instructions on counts two and four deficient for failing to instruct the jury that Budd’s conduct needed to “shock the conscience” to violate the Fourteenth Amendment.

Finally, the appellate court rejected Budd’s argument that he was entitled to judgment of acquittal on counts three and four because Blazo’s injuries were de minimis and insufficient to support a constitutional violation, and because Moore had failed to identify Budd as his assailant or establish that Budd acted without penological justification.

The Sixth Circuit found that Blazo’s injuries were comparable to those of the prisoner in Hudson v. McMillian, 503 U.S. 1 (1992). Additionally, the Court determined that “a rational factfinder could have concluded that Budd acted without penological justification and therefore unnecessarily and wantonly inflicted pain on Moore, in violation of the Eighth Amendment.” Moreover, Budd’s failure-to-identify argument was “totally meritless” because two other guards had identified him as Moore’s assailant. See: United States v. Budd, 496 F.3d 517 (6th Cir. 2007), cert. denied.

Related legal case

United States v. Budd


 

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