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Sheldon J. (Shelly) Sperling
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| For Release: April 22, 2008 For Further Information Contact: Sheldon J. Sperling, United States Attorney |
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MUSKOGEE, OKLAHOMA - Sheldon J. Sperling, United States Attorney for the Eastern District of Oklahoma, announced today that the Supreme Court of the United States denied the petition for a writ of certiorari in USA v. MELVIN ELLIS HOLLY.
“HOLLY, former sheriff of Latimer County, Oklahoma, filed the petition with the Court on October 8, 2007,” reported U.S. Attorney Sperling. “The issue raised by the defendant was based on the June 13, 2007 decision by the Tenth Circuit Court of Appeals regarding count five of the conviction. HOLLY asked the Court to ‘reconsider its decision and either reverse and remand count five, or order the resubmission and reargument of count five on the issue of harmless error or such other relief the court deems proper … .’”
“The Tenth Circuit panel of judges found any error harmless on count five with regard to testimony at trial by one of the government’s witnesses. HOLLY’s petition argued that before harmless error can be considered sua sponte (Latin for “on a judge’s own motion, without a request from a party), three elements must be present: 1) record not overly long or complex; 2) harmlessness is not rebuttable; and 3) reversal would result in futile and costly proceedings. The defendant submitted that the three elements were not met. The ruling of the Supreme Court of the United States upheld the Tenth Circuit’s findings.”
“HOLLY argued that the jury was improperly instructed that fear could be presumed by a disparity in power,” stated U.S. Attorney Sperling. “The net effect of the Supreme Court order is to uphold the Tenth Circuit opinion which affirmed the defendant’s primary convictions.”
“HOLLY was sentenced to 25 years without parole in federal prison in November 2005. United States District Court Judge Stephen P. Friot pronounced the sentence in the Eastern District of Oklahoma, at Muskogee,” recalled U.S. Attorney Sperling.
“On August 16, 2005, a federal jury had found Holly guilty of twelve counts of Deprivation of Rights Under Color of Law, one count of Making a False Statement to an Agent of the Federal Bureau of Investigation, and one count of Tampering with a Witness. Central to the charges was aggravated sexual abuse by the defendant of inmates. The defendant’s conduct violated the inmates’ civil rights under the Constitution of the United States of America to bodily integrity – freedom from sexual battery,” U. S. Attorney Sheldon J. Sperling noted.
“The witness tampering felony, false statement felony, an aggravated sexual abuse felony, and eight misdemeanor convictions for civil rights deprivations – are undisturbed by this appellate decision,” U.S. Attorney Sperling noted. “The 300 month sentence imposed by the court has been upheld. Under federal law, this lengthy sentence may not be the subject of parole.”
“Although the appellate panel found one jury instruction infirm, the appeals court credited the trial testimony that the defendant had nonconsensual sex with four female jail inmates and tried to have sex with another who physically resisted his advances.”
“The appellate panel upheld the court’s instruction on the proof of force. Force may be inferred from difference in size between a defendant and victim, from a disparity in power or position, or from restraint. But since the instruction did not clearly require the jury to find a heightened level of fear of death, serious bodily injury or kidnapping, the instructional error caused the panel to vacate 4 of 14 convictions.”
“The divided appeals court looked to what a rational jury would have found under a proper instruction. As to Count V, which charged felony aggravated sexual abuse, the court found the jury verdict would have been the same without the error. In short, the Denver-based court found the error harmless. In this unique case, the opinion holds, the harmlessness of the error is both certain and readily apparent. This conviction was supported, the court found, by overwhelming and uncontroverted evidence.”
“Even as to the counts of conviction reversed, the court found: ‘… (it) is entirely possible the jury would have found Holly committed aggravated sexual abuse upon each of the five victims, had it been properly instructed on the statutory elements of the crime.’ ”
“I am confident that, in formulating instructions, the trial judge was trying to do the right thing. I am also confident that in rendering the appellate decision, the panel judges tried to do what they believed the law requires.”
“The decision would permit retrial on the four counts. After we deliberate with Department of Justice appellate counsel, we will decide whether to retry the 4 counts, seek resentencing, or do nothing. The sentences on ten counts that survive, total 300 total months, with or without four fewer convictions. And, of course, the defendant may ask the panel for a rehearing, request a rehearing before all the Tenth Circuit judges, or appeal to the Supreme Court.”
“The Court found overwhelming evidence in its review that in Count V, Holly had placed a victim in fear that they would be subjected to death, serious bodily injury, or kidnapping. In addition to the explicit threat, the testimony at trial that Holly repeatedly looked at his gun prior to engaging in the sexual assaults constitutes direct and specific testimony of an implicit threat of death or serious bodily injury. The Court opined there is no way a rational jury could have concluded the victim/witness was placed in fear of some bodily harm, as the jury necessarily did, without also concluding she was placed in fear of death or serious bodily injury.”
U.S. Attorney Sperling further recalls details from the district court sentencing. “The charges resulted from an investigation by the Federal Bureau of Investigation and the Oklahoma State Bureau of Investigation. “We didn’t try the man he says he was,” United States Attorney Sperling stated at the time of the sentencing. “We prosecuted the predator he became.”
“We said in court that although one person, the defendant, was repeatedly and criminally gratified, each victim was individually, personally, and separately sexually battered. This criminal behavior was volitionally chronic, not episodic. The fact that the defendant elected to repeatedly violate his victims and the law, rather than to singularly batter one woman, should not inure to his benefit.”
“We applaud the courage of the victims/witnesses in this case. Producing such victim testimony is no small accomplishment. Victim Witness Specialist Mary Jo Speaker, First Assistant United States Attorney Gay Guthrie, and Assistant United States Attorney Dean Burris did an outstanding job to identify victims and sponsor the testimony and evidence. FBI Special Agent Jim Dawson went above and beyond the call of duty as our case agent.”
“In rebutting the defense argument for sentencing leniency, we observed the defendant’s repeated criminality,” U. S. Attorney Sperling continued. “When the defendant became aware that he was under investigation, he threatened a witness. When he was confronted by investigators, he lied.”
“And the defendant committed the crimes of which he stands convicted while wearing or possessing both a badge and a gun.”
“These counts involve sexual assaults of female jail inmates, female employees of the Latimer County Sheriff’s Office, and a private citizen.”
“The defendant, when confronted by an FBI Special Agent concerning the allegations, denied any form of sexual contact with any prisoner of the Latimer County Jail,” U. S. Attorney Sperling continued. “He also threatened one of the victims by telling her she would end up floating face down in a river if she told authorities about the sexual contact the defendant had with her.”
“Under state law, a female prisoner cannot consent to sex with a law enforcement officer. Why? Jailers have absolute control over prisoners’ lives. Responsible law enforcement officers govern themselves accordingly.”
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