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United States v. Solorzano

December 30, 2008

UNITED STATES OF AMERICA,
v.
KEVIN S. SOLORZANO, DEFENDANT.



The opinion of the court was delivered by: Simandle, District Judge

HON. JEROME B. SIMANDLE

ON APPEAL FROM JUDGMENT OF CONVICTION OF MAGISTRATE JUDGE

OPINION

I. INTRODUCTION

This matter is before the Court upon appeal from Magistrate Judge Rosen's judgment of conviction of Defendant Kevin S. Solorzano. The Government charged Defendant with two counts of violating 18 U.S.C. § 2243(b), which makes it unlawful for a person to engage in a sexual act in a federal prison with a person who is in official detention and "[u]nder the custodial, supervisory, or disciplinary authority of the person so engaging." § 2243(b)(2). Defendant waived his right to a jury trial and consented to proceed before Magistrate Judge Rosen, who, following a bench trial, found beyond a reasonable doubt that Defendant was guilty of the charged offenses. On appeal, Defendant argues that Magistrate Judge Rosen erred in finding that the inmates with whom Defendant engaged in sexual activity were under his "custodial, supervisory, or disciplinary authority." Id. For the reasons set forth below, the Court will affirm the judgment of conviction.

II. BACKGROUND

A. Facts

During the time when the events at issue in this matter took place, Defendant worked as a part-time x-ray technician in the Medical Unit of the Federal Correctional Institution in Fairton, New Jersey ("FCI Fairton"). (Magistrate Judge Letter Opinion ("Mag. J. Op.") at 3.) On multiple occasions, Defendant engaged in sexual acts with two inmates -- Omar Ocasio and Santiago PenaRuiz -- while these inmates were in the Medical Unit of the prison in order to have x-rays taken. (Id. at 3-4.) As Magistrate Judge Rosen's Opinion makes clear, Defendant conceded at trial that he engaged in sexual acts with these inmates, that the acts took place in the prison, that the acts were "sexual act[s]" as that term is defined in 18 U.S.C. § 2246(2), and that the inmates were in official detention. (Id. at 3.) The sole issue before Magistrate Judge Rosen, as on appeal, was whether the inmates with whom Defendant engaged in sexual activity were "[u]nder the custodial, supervisory, or disciplinary authority of [Defendant]," § 2243(b)(2), when Defendant engaged in the allegedly unlawful conduct. The Court thus reviews only those facts that are relevant to this element of the charged offenses.

According to the testimony of Agent Jerry Byrnes of FCI Fairton, Defendant, as a contract employee at the prison, would receive a key, a radio, and an identification badge at a checkpoint upon his arrival to work. (Mag. J. Op. at 3.) After he received these items, Plaintiff would proceed, unescorted, to the Medical Unit, to which he had been given the key for the outer door. (Id.) As Agent Byrnes testified, no security officers or prison personnel were present with Defendant when he was at work with inmates in the Medical Unit. (Id.) According to Agent Byrnes,

[w]hen the inmates come to the hospital area, they're in a waiting area, like a regular waiting room. And there's a wooden door there that the x-ray technician would have a key for. [Defendant] could go out to that waiting area, unlock the door, call for whatever inmate, bring him into the hospital, lock the wooden door and then take them back to the x-ray room. (Tr. at 49.)

Defendant's testimony was consistent with that of Agent Byrnes on this point; Defendant testified that although he could not order that inmates be summoned to the Medical Unit, once inmates were brought to the Unit, "they were, in fact, alone with him." (Mag. J. Op. at 4-5.) According to Defendant's testimony, he would personally escort inmates from the Medical Unit waiting room to the x-ray room, where the inmate would be alone with Defendant. (Id. at 5.)

The testimony at trial indicated that Defendant engaged in sexual activity with Mr. Ocasio on two occasions, and with Mr. Pena-Ruiz on one occasion. (Id. at 4.) According to Mr. Ocasio, on three occasions, he visited the Medical Unit's x-ray room and was alone with Defendant. (Id.) On December 18, 2003 and December 23, 2003, Defendant closed the door to the x-ray room, where the two engaged in sexual activity. (Id.) Mr. Ocasio testified that Defendant stated to him that if Mr. Ocasio told anyone about what had happened, Mr. Ocasio could be sent to the prison's Special Housing Unit ("SHU") and Defendant could lose his job; Mr. Ocasio testified that he understood this statement to be a threat. (Id.) According to the testimony of Mr. PenaRuiz, Defendant engaged in similar conduct on August 23, 2004. (Id.) On that date, Mr. Pena-Ruiz testified, Defendant took him into the x-ray room, closed the door, and engaged in sexual activity with him; as with Mr. Ocasio, Defendant informed Mr. Pena-Ruiz that if he told anyone about their encounter, he could be placed in the SHU. (Id.) At trial, Defendant testified that he informed both of these inmates that they could be placed in the SHU if they informed anyone of their sexual encounters with him, although he declined to characterize these statements as threats. (Id. at 5.)

B. Procedural History

After he was charged with the two-count Complaint in this matter, Defendant waived his right to a jury trial and consented to proceed before Magistrate Judge Rosen. (Id. at 2.) Following a bench trial at which Agent Byrnes, Messrs. Ocasio and PenaRuiz, and Defendant testified, Judge Rosen issued a Letter Opinion in which he found "beyond a reasonable doubt that the defendant is guilty of each Count of the Complaint." (Id. at 6.) In concluding that Defendant had custodial and supervisory authority over inmates Ocasio and Pena-Ruiz when the inmates were locked in the Medical ...


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