United States of America v. Jeremy McCusker

Jeremy McCusker, a former correctional officer at Roxbury Correctional Institution (RCI) in Hagerstown, Md., yesterday pleaded guilty to assaulting an inmate and conspiring with other officers to cover up that assault. McCusker is the sixth former RCI officer to enter a guilty plea in federal court.



According to court documents filed in connection with his guilty plea, McCusker admitted that, during the midnight shift on March 8-9, 2008, he, Lanny Harris, Philip Mayo and two other RCI officers were involved in an assault of an inmate, identified by the initials K.D. McCusker acknowledged that he and other RCI officers assaulted K.D. in order to punish him for striking an officer during a prior shift.



McCusker also admitted that he and other RCI officers discussed how they would cover up their involvement in the assault of K.D. McCusker admitted that he provided false and misleading information to federal and state authorities in an effort to cover up his involvement in the assault.



"Mr. McCusker has admitted that he and other correctional officers assaulted an inmate in order to punish him and that they subsequently conspired to cover up their criminal conduct,” said Roy L. Austin Jr., Deputy Assistant Attorney General for the Civil Rights Division. "The Justice Department will continue to vigorously prosecute officers who use their official position to both commit and cover up violations of federal criminal law.”



McCusker faces a statutory maximum penalty of 15 years in prison. Sentencing is set for Aug. 23, 2013, before U.S. District Judge James K. Bredar.



In related cases before Judge Bredar, former RCI Correctional Officers Ryan Lohr, Philip Mayo, Dustin Norris, Walter Steele, and Lanny Harris each has entered a guilty plea. Nine other current or former RCI officers still face federal charges in connection with the alleged assault of K.D.



The investigation by the Frederick Resident Agency of the FBI is ongoing. The case is being prosecuted by Special Litigation Counsel Forrest Christian and Trial Attorney Sanjay Patel of the Civil Rights Division of the Department of Justice, with the assistance of Michael Cunningham of the U.S. Attorney's Office for the District of Maryland.



Title 18 U.S.C. 241 provides:



If two or more persons conspire to injure, oppress, threaten, or

intimidate any person in any State, Territory, Commonwealth,

Possession, or District in the free exercise or enjoyment of any

right or privilege secured to him by the Constitution or laws of

the United States, or because of his having so exercised the same;



or



If two or more persons go in disguise on the highway, or on the

premises of another, with intent to prevent or hinder his free

exercise or enjoyment of any right or privilege so secured -

They shall be fined under this title or imprisoned not more than

ten years, or both; and if death results from the acts committed in

violation of this section or if such acts include kidnapping or an

attempt to kidnap, aggravated sexual abuse or an attempt to commit

aggravated sexual abuse, or an attempt to kill, they shall be fined

under this title or imprisoned for any term of years or for life,

or both, or may be sentenced to death.



Title 18 U.S.C. 242 provides:



Deprivation of Rights Under Color of Law



This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.



This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race.



Acts under "color of any law" include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under "color of any law," the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs.



Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined or imprisoned up to ten years or both, and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.



Title 18 U.S.C. 371 provides:



If two or more persons conspire either to commit any offense

against the United States, or to defraud the United States, or any

agency thereof in any manner or for any purpose, and one or more of

such persons do any act to effect the object of the conspiracy,

each shall be fined under this title or imprisoned not more than

five years, or both.



If, however, the offense, the commission of which is the object

of the conspiracy, is a misdemeanor only, the punishment for such

conspiracy shall not exceed the maximum punishment provided for

such misdemeanor.



Title 18 U.S.C. 1512 provides:



(a)(1) Whoever kills or attempts to kill another person, with

intent to -

(A) prevent the attendance or testimony of any person in an

official proceeding;

(B) prevent the production of a record, document, or other

object, in an official proceeding; or

(C) prevent the communication by any person to a law

enforcement officer or judge of the United States of information

relating to the commission or possible commission of a Federal

offense or a violation of conditions of probation, parole, or

release pending judicial proceedings;

shall be punished as provided in paragraph (3).

(2) Whoever uses physical force or the threat of physical force

against any person, or attempts to do so, with intent to -

(A) influence, delay, or prevent the testimony of any person in

an official proceeding;

(B) cause or induce any person to -

(i) withhold testimony, or withhold a record, document, or

other object, from an official proceeding;

(ii) alter, destroy, mutilate, or conceal an object with

intent to impair the integrity or availability of the object

for use in an official proceeding;

(iii) evade legal process summoning that person to appear as

a witness, or to produce a record, document, or other object,

in an official proceeding; or

(iv) be absent from an official proceeding to which that

person has been summoned by legal process; or

(C) hinder, delay, or prevent the communication to a law

enforcement officer or judge of the United States of information

relating to the commission or possible commission of a Federal

offense or a violation of conditions of probation, supervised

release, parole, or release pending judicial proceedings;

shall be punished as provided in paragraph (3).

(3) The punishment for an offense under this subsection is -

(A) in the case of murder (as defined in section 1111), the

death penalty or imprisonment for life, and in the case of any

other killing, the punishment provided in section 1112;

(B) in the case of -

(i) an attempt to murder; or

(ii) the use or attempted use of physical force against any

person;

imprisonment for not more than 20 years; and

(C) in the case of the threat of use of physical force against

any person, imprisonment for not more than 10 years.

(b) Whoever knowingly uses intimidation, threatens, or corruptly

persuades another person, or attempts to do so, or engages in

misleading conduct toward another person, with intent to -

(1) influence, delay, or prevent the testimony of any person in

an official proceeding;

(2) cause or induce any person to -

(A) withhold testimony, or withhold a record, document, or

other object, from an official proceeding;

(B) alter, destroy, mutilate, or conceal an object with

intent to impair the object's integrity or availability for use

in an official proceeding;

(C) evade legal process summoning that person to appear as a

witness, or to produce a record, document, or other object, in

an official proceeding; or

(D) be absent from an official proceeding to which such

person has been summoned by legal process; or

(3) hinder, delay, or prevent the communication to a law

enforcement officer or judge of the United States of information

relating to the commission or possible commission of a Federal

offense or a violation of conditions of probation (!1) supervised

release,,(!1) parole, or release pending judicial proceedings;

shall be fined under this title or imprisoned not more than ten

years, or both.

(c) Whoever corruptly -

(1) alters, destroys, mutilates, or conceals a record,

document, or other object, or attempts to do so, with the intent

to impair the object's integrity or availability for use in an

official proceeding; or

(2) otherwise obstructs, influences, or impedes any official

proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20

years, or both.

(d) Whoever intentionally harasses another person and thereby

hinders, delays, prevents, or dissuades any person from -

(1) attending or testifying in an official proceeding;

(2) reporting to a law enforcement officer or judge of the

United States the commission or possible commission of a Federal

offense or a violation of conditions of probation (!1) supervised

release,,(!1) parole, or release pending judicial proceedings;

(3) arresting or seeking the arrest of another person in

connection with a Federal offense; or

(4) causing a criminal prosecution, or a parole or probation

revocation proceeding, to be sought or instituted, or assisting

in such prosecution or proceeding;

or attempts to do so, shall be fined under this title or imprisoned

not more than one year, or both.

(e) In a prosecution for an offense under this section, it is an

affirmative defense, as to which the defendant has the burden of

proof by a preponderance of the evidence, that the conduct

consisted solely of lawful conduct and that the defendant's sole

intention was to encourage, induce, or cause the other person to

testify truthfully.

(f) For the purposes of this section -

(1) an official proceeding need not be pending or about to be

instituted at the time of the offense; and

(2) the testimony, or the record, document, or other object

need not be admissible in evidence or free of a claim of

privilege.

(g) In a prosecution for an offense under this section, no state

of mind need be proved with respect to the circumstance -

(1) that the official proceeding before a judge, court,

magistrate judge, grand jury, or government agency is before a

judge or court of the United States, a United States magistrate

judge, a bankruptcy judge, a Federal grand jury, or a Federal

Government agency; or

(2) that the judge is a judge of the United States or that the

law enforcement officer is an officer or employee of the Federal

Government or a person authorized to act for or on behalf of the

Federal Government or serving the Federal Government as an

adviser or consultant.

(h) There is extraterritorial Federal jurisdiction over an

offense under this section.

(i) A prosecution under this section or section 1503 may be

brought in the district in which the official proceeding (whether

or not pending or about to be instituted) was intended to be

affected or in the district in which the conduct constituting the

alleged offense occurred.

(j) If the offense under this section occurs in connection with a

trial of a criminal case, the maximum term of imprisonment which

may be imposed for the offense shall be the higher of that

otherwise provided by law or the maximum term that could have been

imposed for any offense charged in such case.

(k) Whoever conspires to commit any offense under this section

shall be subject to the same penalties as those prescribed for the

offense the commission of which was the object of the conspiracy.



Title 18 U.S.C. 1001 provides:



(a) Except as otherwise provided in this section,

whoever, in any matter within the jurisdiction

of the executive, legislative, or judicial

branch of the Government of the United States,

knowingly and willfully—

(1) falsifies, conceals, or covers up by any

trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or

fraudulent statement or representation; or

(3) makes or uses any false writing or document

knowing the same to contain any materially

false, fictitious, or fraudulent statement

or entry;

shall be fined under this title, imprisoned not

more than 5 years or, if the offense involves

international or domestic terrorism (as defined

in section 2331), imprisoned not more than 8

years, or both. If the matter relates to an offense

under chapter 109A, 109B, 110, or 117, or

section 1591, then the term of imprisonment imposed

under this section shall be not more than

8 years.

(b) Subsection (a) does not apply to a party to

a judicial proceeding, or that party's counsel,

for statements, representations, writings or documents

submitted by such party or counsel to a

judge or magistrate in that proceeding.

(c) With respect to any matter within the jurisdiction

of the legislative branch, subsection

(a) shall apply only to—

(1) administrative matters, including a

claim for payment, a matter related to the

procurement of property or services, personnel

or employment practices, or support services,

or a document required by law, rule, or regulation

to be submitted to the Congress or any office

or officer within the legislative branch; or

(2) any investigation or review, conducted

pursuant to the authority of any committee,

subcommittee, commission or office of the

Congress, consistent with applicable rules of

the House or Senate.

Defendant pleaded guilty.

Editor's Comment: It is never appropriate for a police or corrections officer to have sex with anyone in custody. Any officer who engages in sex with a prisoner is personally liable and violates both state and federal law.