United States of America v. Glenn Guadalupe

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3358
UNITED STATES OF AMERICA
v.
GLENN GUADALUPE
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 01-cr-00429-1)
District Judge: The Honorable William H. Yohn, Jr.
Argued: February 15, 2005

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Before: SLOVITER, AMBRO and ALDISERT, Circuit
Judges
(Filed: March 31, 2005)
Mark E. Cedrone (Argued)
Cedrone & Janove
Suite 940 Public Ledger Building
150 South Independence Mall West
6th & Chestnut Streets
Philadelphia, PA 19106
Attorney for Appellant
Anthony J. Wzorek (Argued)
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Attorney for Appellee
OPINION OF THE COURT

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The district court had jurisdiction pursuant to 18 U.S.C.1
§ 3231 and we have jurisdiction pursuant to 28 U.S.C. § 1291.
Because Guadalupe did not challenge the sufficiency of the
evidence or the jury instructions at trial, we review these
questions for plain error. It is the defendant’s burden to establish
plain error. United States v. Olano, 507 U.S. 725, 734-735
(1993). To do so, he must prove that: (1) the court erred; (2) the
error was obvious under the law at the time of review; and (3)
the error affected substantial rights—the outcome of the
proceeding. Johnson v. United States, 520 U.S. 461, 467 (1997).
If all three elements are established, the court may, but need not,
exercise its discretion to award relief if the error affects the
fairness, integrity or public perception of the proceedings. Id.
3
ALDISERT, Circuit Judge.
This appeal by Glen Guadalupe requires us to decide
whether: (1) the jury’s verdict is supported by legally
sufficient evidence; and (2) the district court properly
instructed the jury. Guadalupe was tried jointly with
Appellants Reginald Steptoe and Cornell Tyler in the United
States District Court for the Eastern District of Pennsylvania.
The jury found Steptoe and Tyler guilty of deprivation of the
civil rights of another in violation of 18 U.S.C. § 242 and
Guadalupe guilty of obstruction of justice in violation of 18
U.S.C. § 1512(b)(3). Guadalupe was sentenced to, inter alia,
incarceration for a term of fifteen months. This appeal
followed.1

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The insufficiency of evidence contention is anchored
on the theory that the government failed to prove that
Guadalupe believed that Burnette, the person he attempted to
corruptly persuade, might communicate with a federal
official. We conclude that proving a violation of 18 U.S.C. §
1512(b)(3) does not depend on the existence or imminency of
a federal investigation but rather on the possible existence of
a federal crime and a defendant’s intention to thwart an
inquiry into that crime by officials who happen to be federal.
Because of Guadalupe’s position and experience in prison
administration, he knew or should have known that the
beating of Dante Hunter constituted a violation of federal civil
rights statutes. Accordingly, we will affirm.
I.
Guadalupe was the former Deputy Warden of
Operations at Curran Fromhold Correctional Facility
(“CFCF”), a prison in Philadelphia. On March 11, 1999,
Hunter, a prison inmate, was savagely beaten by Steptoe and
Tyler, both former correctional officers. Linda Burnette, a
former correctional lieutenant, testified that she observed
Tyler and Steptoe punch and beat Hunter and said that she
ordered them to stop but they would not do so. Burnette’s
testimony was corroborated by several other witnesses at trial.
Shortly after the beatings, Burnette told Captain
Winston Boston, the shift commander, what had happened.
After leaving Boston, she went to see Guadalupe and told him
as well. She testified that Guadalupe responded that
somebody was going to “burn” for what happened. After

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Burnette identified the officers who had beaten Hunter,
Guadalupe told her: “they can’t burn . . . they’re my boys, my
homies.”
Later, when Burnette, Boston and Guadalupe were
discussing the incident, Guadalupe said that he had informed
the officers involved in the beating that “someone had to
come up with an injury to justify the amount of force” used on
Hunter. Guadalupe also told Burnette that, in her
memorandum on the beating, she should not mention that she
had ordered the officers to stop.
Because she felt intimidated and was afraid to “go
against the grain,” Burnette lied in the written statement she
gave to Boston and the first two statements she gave to
Internal Affairs. On March 21, 1999, Burnette told Warden
Dunleavy that she had lied. Two days later she gave a full
truthful statement to Internal Affairs.
II.
18 U.S.C. § 1512(b)(3) makes it a federal offense to
“knowingly . . . corruptly persuade another person or
attempt[] to do so . . . with intent to hinder, delay, or prevent
the communication to a law enforcement officer . . . of the
United States . . . of information relating to the commission or
possible commission of a Federal offense . . . .” The statute
further provides that “an official proceeding need not be
pending or about to be instituted at the time of the offense . . .
.” § 1512(e)(1). “No state of mind need be proved with
respect to the circumstance . . . that the official proceeding is

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before a judge or court of the United States . . . ,” §
1512(f)(1), and “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 . .
. the Federal Government . . . ,” § 1512(f)(2).
To obtain a conviction pursuant to 18 U.S.C. §
1512(b)(3), the government must prove that: (1) the defendant
attempted to corruptly persuade a person; (2) the defendant
was motivated by a desire to prevent the communication
between that person and law enforcement authorities
concerning the commission or possible commission of an
offense; (3) the offense was actually a federal offense; and (4)
the defendant believed that the person he attempted to
corruptly persuade might communicate with federal
authorities. United States v. Stansfield, 101 F.3d 909, 918 (3d
Cir. 1996). This last element may be inferred from the fact
that the offense was federal in nature, plus “additional
appropriate evidence.” Id. An example of this “additional
appropriate evidence” is that the defendant had actual
knowledge of the federal nature of the offense. Id.
From a policy standpoint, “this framework is an
appropriate reconciliation between the constraint that the
government must prove the defendant’s specific intent to
hinder a federal investigation and the fact that, by virtue of §
1512(f), it need not prove that the defendant knew the federal
status of any particular law enforcement officer involved in an
investigation.” Id. at 919.
The cumulative experience of this Court’s judges give

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us specific direction on how to analyze a charge under §
1512(b)(3). In Stansfield, we upheld a defendant’s conviction
for tampering with a witness because there was “additional
appropriate evidence” that the defendant believed that the
witness might communicate with federal authorities. Id. The
defendant had knowledge of the witness’s past cooperation
with federal authorities and was aware that an investigation,
though not necessarily a federal one, was underway. Id.
In United States v. Bell, 113 F.3d 1345 (3d Cir. 1997),
we applied the precise teachings of Stansfield to a similar set
of facts. A witness was an informant for a task force
comprised of local, state and federal investigators and was
scheduled to testify at a state drug trial for the defendant’s
boyfriend. Id. at 1347. The defendant was also implicated in
many of these drug offenses. Before the boyfriend’s trial, the
defendant kidnapped and murdered the witness. Id. This Court
discussed Stansfield and reiterated that the government “must
prove that at least one of the law enforcement-officer
communications which the defendant sought to prevent would
have been with a federal officer, but [] the government is not
obligated to prove that the defendant knew or intended
anything with respect to this federal involvement.” Id. at
1349. In applying these principles to the facts in Bell, we
reasoned that
while the evidence may lend itself
more obviously to the theory that
Bell killed Proctor in order to
prevent her from testifying a few
hours later at Tyler’s trial, it also

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supports the inference that Bell
believed Proctor was going to
continue to communicate with the
Task Force concerning drug
crimes that Bell and others had
committed.
Id. at 1350.
United States v. Applewhaite, 195 F.3d 679 (3d Cir.
1999), added a new dimension to our jurisprudence. There,
the defendant was involved with a woman who was separated
from her husband. The defendant and the wife kidnapped the
husband and attempted to murder him. Id. at 683. After the
attack, the wife talked to a local police officer and asked him
to provide an alibi for her. Following her arrest, her lover
reminded the police officer to cover for her. Id.
The defendants were convicted of tampering with a
witness in violation of 18 U.S.C. § 1512(b)(3). Id. at 686. On
appeal, they contended that “the evidence was not sufficient
to allow the jury to infer that [the local police officer] would
provide a false alibi to a federal law enforcement officer.” Id.
In analyzing the federal tampering conviction, we
concluded that
the evidence showed that the
defendants attempted to influence
the testimony available to law
enforcement officers. The

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government did not have to
establish that the defendants
specifically intended to interfere
with a federal investigation. All
that § 1512(b)(3) requires is that
the government establish that the
defendants had the intent to
influence an investigation that
happened to be federal.
Id. at 687.
The teachings of Applewhaite lessened the
government’s burden of proof in federal obstruction of justice
cases because we did not require any “additional appropriate
evidence” that the defendant believed the person he attempted
to corruptly persuade might communicate with federal
officials. Applewhaite is in line with the United States Court
of Appeals for the Eleventh Circuit’s decision in United
States v. Veal, 153 F.3d 1233, 1250 (11th Cir. 1998) (holding
that 18 U.S.C. § 1512(b)(3) “does not depend on the existence
or imminency of a federal case or investigation but rather on
the possible existence of a federal crime and a defendant’s
intention to thwart an inquiry into that crime”). The court in
Veal reasoned:
For violation of § 1512(b)(3), it is
sufficient if the misleading
information is likely to be
transferred to a federal agent. All
that was required for Veal,

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Watson and Haynes’s violation of
§ 1512(b)(3) was the possibility or
likelihood that their false and
misleading information would be
transferred to federal authorities
irrespective of the governmental
authority represented by the initial
investigators.
Id. at 1251-1252 (emphasis in original).
The United States Court of Appeals for the Fifth
Circuit in United States v. Causey, 185 F.3d 407 (5th Cir.
1999), flatly rejected the Veal decision stating: “We do not
find the Eleventh Circuit’s reasoning persuasive in resolving
the question before us in this case.” Id. at 422. The court
reversed a defendant’s conviction pursuant to 18 U.S.C. §
1512(a)(1)(c) because there was no evidence that the murder
was motivated by a desire to impact a future federal
investigation. Id. at 422-423. Significantly, the court made
favorable reference to our 1997 Bell case, but did not have the
advantage of the teachings of Applewhaite, decided
subsequent to Causey.
Here, the government met its burden of proof as most
recently articulated in Applewhaite because Guadalupe
intended to influence an investigation which later became
federal. We also stay faithful to the teachings of Stansfield
and Bell because there is “additional appropriate evidence”
that Guadalupe knew or should have known that Burnette
might communicate with federal officials based on his

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position and experience as a prison administrator.
III.
Guadalupe was convicted under § 1512(b)(3) for
“corruptly persuading” Burnette not to report that Steptoe and
Tyler beat Hunter. It is undisputed that: (1) Guadalupe
attempted to corruptly persuade Burnette; (2) he was
motivated by a desire to prevent Burnette from
communicating with officials concerning the beating of
Hunter; and (3) the beating of Hunter was actually a federal
offense. The only disputed issue is whether Guadalupe
believed that Burnette might communicate with federal
authorities. See Stansfield, 101 F.3d at 918.
Guadalupe argues that the evidence demonstrates that
he intended solely to influence a non-federal investigation
because he specifically instructed Burnette to make
misstatements on an internal prison memoranda and during an
interview with Internal Affairs. We conclude that the
evidence also supports an inference that Guadalupe believed
that Burnette might communicate with federal authorities.
At the time of Hunter’s beating, Guadalupe had
approximately seventeen years experience as a prison
administrator, was second in command of CFCF along with
two other deputy wardens and was responsible for the
investigation of cases where correctional officers physically
abused inmates. Because of his position and experience,

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Since the events of March, 1999, additional cases have2
joined the parade of those exposing the criminal culpability of
correction officers. See United States v. Garcia, 114 Fed. Appx.
292, 294 (9th Cir. 2004) (affirming former prison guards’
conviction under § 241 for conspiracy to violate prisoners’
constitutional rights); United States v. Valazquez, 246 F.3d 204,
207 (2d Cir. 2001) (discussing the conviction of two prison
guards pursuant to §§ 241 and 242 for beating a prisoner to
12
Guadalupe had knowledge, or should have had knowledge,
that the beating of an inmate in a penal institution may be
considered a federal civil rights violation. There are a
multitude of cases in which prison administrators have been
prosecuted under 18 U.S.C. §§ 241 and 242 and it can be
inferred that an administrator at Guadalupe’s level would be
aware of this body of case law. See e.g., United States v.
Tines, 70 F.3d 891, 893 (6th Cir. 1995) (holding that evidence
was sufficient to support a prison guard’s conviction under §
242 when the guard gathered other prison officers for the
purpose of beating the inmates, gave the other officers stun
guns and was also seen in the control room during beatings);
United States v. Vaden, 912 F.2d 780, 781 (5th Cir. 1990)
(upholding a prison guard’s conviction for violating the rights
of an inmate under § 242 and aiding and abetting assaults on
the inmate); United States v. Bigham, 812 F.2d 943, 944 (5th
Cir. 1987) (analyzing prison officials’ convictions under §§
241 and 242 for violating the civil rights of two inmates);
United States v. Jackson, 235 F.2d 925, 928 (8th Cir. 1956)
(holding that a state prison guard who beat a prisoner violated
§ 242).2

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death).
This actually is more than Bell requires, as here3
Guadalupe knew or should have known from his unique
perspective that federal officers were highly likely to be
involved at some point in the investigation whereas Bell merely
requires that Guadalupe know that he was causing the
13
Moreover, we are compelled to conclude that someone
in Guadalupe’s position would also be conversant with the
large body of cases adjudicating civil complaints by prison
inmates against corrections officials under 42 U.S.C. § 1983.
There are approximately fourteen pages of cases that annotate
§ 1983 involving “Assault by prison officials.” See 42
U.S.C.A. § 1983 note 2191.
We hold that it was reasonable for the jury to infer that
Guadalupe attempted to corruptly persuade Burnette “with
intent to . . . prevent the communication by [Burnette] to a law
enforcement officer . . . of the United States of information
relating to the commission or possible commission of a
Federal offense.” 18 U.S.C. § 1512(b)(3). Although the
government did not prove that Guadalupe had actual
knowledge of the federal nature of the offense or that
Burnette’s information might ultimately be communicated to
officers who happen to be federal, this knowledge can be
inferred by virtue of Guadalupe’s position as a veteran top
executive of CFCF with extensive knowledge of how
investigations of the sort involved here proceed (including
that federal authorities typically become involved).3

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withholding of information to officials who are in fact federal
regardless of whether Guadalupe actually knew they were
federal officials. See Bell, 113 F.3d at 1350.
14
Accordingly, there is sufficient evidence to uphold
Guadalupe’s conviction pursuant to 18 U.S.C. § 1512(b)(3).
IV.
In the case of an erroneous jury instruction, the
relevant inquiry is whether, in light of the evidence presented
at trial, the failure to instruct had a prejudicial effect on the
jury’s deliberations so as to produce a miscarriage of justice.
United States v. Haywood, 363 F.3d 200, 207 (3d Cir. 2004)
(holding that the district court’s failure to instruct the jury that
knowledge of an obliterated serial number was an element of
the crime of possession of a firearm with obliterated serial
number was plain error). In United States v. Farrell, 126 F.3d
484 (3d Cir. 1997), we stated that “[w]ithout any definitional
assistance, we find the phrase ‘corruptly persuades’ to be
ambiguous.” Id. at 487. We reversed the defendant’s
conviction because we concluded that the conduct for which
he was convicted did not constitute “corrupt persuasion”
within the meaning of the statute. Id. at 486.
Here, Guadalupe argues that the district court
improperly instructed the jury with respect to the elements of
18 U.S.C. § 1512(b)(3) because it did not define “corruptly
persuades” and because it improperly explained the extent to
which federal involvement must be present. First, even if the

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court erred by not defining “corruptly persuades,” there is no
evidence that this error had a prejudicial affect on the jury’s
deliberations so as to produce a miscarriage of justice. Unlike
Farrell, Guadalupe does not contend that there is insufficient
evidence that his conduct constituted corrupt persuasion
within the meaning of the statute. The evidence is sufficient
that Guadalupe instructed Burnette to lie to cover up the
incident. Accordingly, there was no miscarriage of justice.
Second, we detect no error with the instructions
regarding the federal element of the crime. The court’s
instructions comport with the instructions approved by this
Court in Stansfield. See 171 F.3d at 816 n. 8 (instructing the
jury, in relevant part, that “there need not be an ongoing
federal investigation or even any intent on the part of federal
authorities to investigate”). Accordingly, there was no plain
error.
* * * * *
After Applewhaite, the government may meet its
burden of proof under 18 U.S.C. § 1512(b)(3) by proving that
the defendant had the intent to influence an investigation that
later turned out to be federal. 195 F.3d at 687. Under
Stansfield, the government must present “additional
appropriate evidence” of a federal nexus. See Bell, 113 F.3d
at 1349. Here, the government has met the test articulated in
Applewhaite as well as the more stringent test articulated
previously in Stansfield. By attempting to corruptly persuade
Burnette, Guadalupe intended to influence an investigation

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that later turned out to be federal. There is also “additional
appropriate evidence” that Guadalupe knew or should have
known that Burnette might communicate with federal officials
based on his knowledge of the federal nature of the crime
imputed to him because of his position and experience as a
prison administrator. Accordingly, the jury’s verdict is
supported by legally sufficient evidence.
Additionally, there was no plain error in the district
judge’s instructions to the jury.
The judgment of the district court will be affirmed.

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