## Facts

- Melvin Ellis Holly, the elected sheriff of Latimer County, Oklahoma, was charged in a fifteen-count superseding indictment that included misdemeanor and felony deprivations of rights under color of law (18 U.S.C. § 242), plus false statement (18 U.S.C. § 1001) and witness tampering (18 U.S.C. § 1512(a)(2)(C)).
- The felony § 242 counts alleged that, acting under color of law, Holly deprived victims of constitutional rights in conduct “involving aggravated sexual abuse,” an enhancement tied to the definition in 18 U.S.C. § 2241(a).
- The prosecution presented testimony that Holly had nonconsensual sex with four female jail inmates and attempted to have sex with another inmate.
- Evidence included allegations that Holly used his custodial authority and physical presence to compel sex; victims testified they feared harm if they resisted, and one count involved more explicit threats and physical acts.
- After a five-day jury trial in the Eastern District of Oklahoma, Holly was convicted on fourteen counts, including all five felony § 242 counts, and acquitted on one misdemeanor § 242 count.
- On appeal, Holly challenged only the five felony § 242 convictions, arguing the jury instructions misstated “aggravated sexual abuse” under § 2241(a).

## Issues

1. Whether the district court’s instructions on “aggravated sexual abuse” under 18 U.S.C. § 2241(a) incorrectly defined the “force” and “fear” elements.
2. If the instructions were erroneous, whether the error was harmless as to each of the five felony § 242 convictions.

## Decision

- The Tenth Circuit held the jury instructions misstated the § 2241(a) elements incorporated into § 242’s aggravated-sexual-abuse enhancement.
- The court ruled that the “fear” instruction improperly allowed conviction based on fear of “some bodily harm,” rather than fear of death, serious bodily injury, or kidnapping as required by § 2241(a)(2).
- The court determined the “force” instruction risked allowing conviction based on a mere disparity in size or coercive power without requiring a finding that the defendant actually used force to cause the sexual act under § 2241(a)(1).
- Applying count-by-count harmless-error review, the court reversed and remanded with instructions to vacate four felony § 242 convictions (Counts II, IV, VI, and VII).
- The court affirmed one felony § 242 conviction (Count V), concluding the instructional error was harmless in light of the evidence specific to that count.

## Legal Principles

- When § 242 enhances punishment based on conduct “involving aggravated sexual abuse,” the jury must be instructed using the statutory elements of aggravated sexual abuse in 18 U.S.C. § 2241(a).
- Under § 2241(a)(2), “fear” must concern death, serious bodily injury, or kidnapping; fear of lesser or generic bodily harm is insufficient.
- Under § 2241(a)(1), “force” requires a finding that the defendant used force to cause the sexual act; a power disparity may be relevant evidence but cannot replace the element.
- Erroneous element instructions require reversal unless the government shows the error was harmless; harmlessness may be assessed separately for each count based on the trial evidence.

## Conclusion

The Tenth Circuit required strict alignment between § 242’s aggravated-sexual-abuse enhancement and § 2241(a)’s force and fear elements, vacating four felony convictions due to inaccurate instructions while affirming one count where the evidence made the instructional error harmless.


United States v. Holly, 488 F.3d 1298 (10th Cir. 2007)