Eleventh Circuit Court of Appeals - Published Opinions

Thursday, April 24, 2008

Moore: Sex for Contraband Conspiracy Affirmed

In U.S. v. Moore, No. 07-10326 (April 22, 2008), the Court affirmed the convictions of two correctional officers convicted of "bribery."
The Court rejected a challenge to the sufficiency of the conspiracy evidence, noting that while the government witness gave conflicting testimony, the jury was free to credit the testimony that the correctional officers agreed to participate in a "sex for contraband conspiracy."
The Court rejected defendants’ argument that the mere acts of switching guard duty to avoid detection, allowing inmate use of the telephone, allowing inmates to leave their unit at night, were not "official acts" for purposes of the illegal gratuity statute. The Court pointed out that an "official act" need not involve a violation of a statute, but could involve the mere violation of an established practice. Under this broader definition, the defendants’ acts were "official acts."
The Court also rejected the argument that there were multiple conspiracies, not a single "sex for contraband" conspiracy. The Court found no "material variance" from the indictment, noting that the defendants acts all had a "common goal," an "underlying scheme," and "overlapping arrangements." Further, a multiple conspiracy jury instruction was not required, because the evidence showed a common scheme.
The Court rejected the argument that the Court constructively amended the indictment when it specifically instructed the jury that it is a violation of an officer’s duty to provide contraband to an inmate. The Court noted that this language was largely based on the indictment and did not expand the grounds for conviction.
The Court also found no "plain error" in the jury instruction that sex is a "thing of value."