United States v. Mark Cowden (No. 17-4046)
Cowden, a former lieutenant with the Hancock County Sheriff’s Office in West Virginia, was charged with several federal crimes in connection with his assault on Ryan Hamrick. Evidence at trial showed that during a traffic stop, Ryan Hamrick resisted another officer’s attempt to place him under arrest. In the course of that struggle, Hamrick received superficial injuries, and he was taken to the police station. As several officers (including Cowden) were escorting Hamrick into the police station, Hamrick pulled away from the officers. Hamrick was cuffed at the time. Despite the fact that the other officers did not perceive Hamrick’s behavior as a threat, but rather he was “just being a pain,” Cowden pulled Hamrick to the side and threw him against a wall. Despite the fact that he was no longer resisting, Cowden again pulled Hamrick’s head away from the wall and slammed his head and face into the wall. Cowden then struck Hamrick on the back of the head with a closed fist, then grabbed Hamrick by the throat, hit him in the head, and yelled at him. The other officers intervened at that point, and observed that Hamrick was bleeding from his nose and mouth. At Cowden’s subsequent criminal trial, the jury heard evidence of two prior criminal investigations involving Cowden’s use of force. Both incidents involved Cowden using excessive force against individuals without provocation. The district court instructed the jury to utilize this evidence pursuant to Rule 404(b), to show the lack of accident or mistake.
Cowden first argues that the court abused its discretion by admitting the 404(b) evidence. The court rejects this argument, noting that the evidence of Cowden’s prior violent conduct was (1) relevant, (2) probative of an essential element of the offense, (3) reliable, and (4) the prejudice of this evidence did not substantially outweigh its probative value. Bearing this in mind, the court holds that the district court did not abuse its discretion in admitting this evidence.
Next, Cowden argues that the trial court erred by denying his motion for directed verdict as to the 18 U.S.C. 242 count. This statute, which criminalizes “deprivation of rights under color of law,” requires the government to show that the defendant willfully deprived an individual of his constitutional rights while acting under the color of law. Cowden takes issue with the government’s alleged failure to show that he acted willfully. The court rejects this argument, noting that Hamrick was restrained at the time that Cowden attacked him, and that there were six other officers present with Cowden at the time, and several of those officers testified that Cowden’s actions were not justified or reasonable.
Next, Cowden argues that the district court erred in failing to instruct the jury on lesser-included offenses. Cowden complains that a 242 violation is a misdemeanor if no bodily injury results, and Cowden asserts that the court’s instructions did not adequately convey that fact to the jury. The court rejects this, ruling that the court did instruct the jury of this distinction, it merely did so in language that was different from the instruction Cowden proposed at trial. The court finds no error with the court’s instructions on this point of law.
Finally, Cowden argues that the district court erred in ordering him to provide restitution for Hamrick’s injuries, since Hamrick sustained injuries at the scene of his arrest, prior to his encounter with Cowden. The court rejects this argument without much explanation, simply pointing to the “overwhelming evidence presented regarding the injuries Hamrick sustained as a result of Cowden’s actions.”