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Criminal Practice — Conviction Upheld for Park Guard Attack

By: Deborah Elkins//October 29, 2014

Criminal Practice — Conviction Upheld for Park Guard Attack

By: Deborah Elkins//October 29, 2014

U.S. v. Briley (Lawyers Weekly No. 001-177-14, 26 pp.) (Wilkinson, J.) No. 13-4831, Oct. 22, 2014; USDC at Alexandria, Va. (O’Grady, J.) 4th Cir.

Holding: A defendant who engaged in sustained physical resistance to being arrested by U.S. Park Police officers who discovered him having sex with another man in the public parking lot of a national park recreational area, properly was convicted of multiple counts under a statute that enumerates multiple ways a person can interfere with officers performing their duties; the 4th Circuit rejects defendant’s interpretation of the statute, 18 U.S.C. § 111, to require the government to prove “assault” for a conviction.

As two officers attempted to remove defendant from the vehicle, defendant struck one officer in the arms, side and lower back. That officer suffered from various lower-back problems after the incident. Defendant kicked the second officer in the abdomen multiple times; the second officer suffered from impairment of his pancreas and lost his gallbladder.

Defendant contends that assault is a required element of the 18 U.S.C. § 111(a) offenses alleged in counts 1, 2 and 3. He maintains that the government failed to charge an actual violation of § 111(a) in counts 2 and 3, and that the district court’s failure to mandate a specific finding of assault rather than other predicate acts vitiated the convictions on all three counts. We find no merit in this argument.

In essence, § 111 proscribes five types of offenses: a misdemeanor (constituting only simple assault), two less serious felonies (involving either physical contact or felonious intent), and two more serious felonies (involving either a weapon or bodily injury).

For several reasons, we do not think assault is a required element. Subsection 111(a) expressly covers a person who forcibly “assaults, resists, opposes, impedes, intimidates, or interferes with” a federal official. Defendant’s reading would render five of those six words – all but “assault” – inoperative with respect to both the misdemeanor and the “physical contact” felony. We must, however, ascribe meaning to the five remaining verbs.

Second, defendant’s assessment wanders too far from congressional intent. Congress enumerated these six verbs in the disjunctive. A person could commit any one of these six acts and still fall under the statute’s coverage.

Third, defendant’s interpretation rips a big hole in the statutory scheme, and would leave federal officials without protection for the carrying out of federal functions.

Fourth, defendant’s take on § 111 produces an absurd result. His reading would allow an individual to commit an array of forcible acts against federal officials performing government functions without criminal consequence.

Finally, although some of our sister circuits have read § 111 somewhat differently, the operative distinctions between those approaches and the conclusion we draw today are limited. Some circuits have agreed with us that § 111 prohibits the six different kinds of enumerated acts and that, specifically, the misdemeanor provision is not limited to assault.

Whatever daylight lies between the circuits’ approaches, it seems to us that the practical distinction is not a large one.

It was proper for the district court to instruct the jury that defendant could have committed any of the threshold acts charged – not “assault” only – to be found guilty of a § 111 offense, so long as the other elements of the offense were satisfied.

Defendant also argues the district court erred in admitting evidence of a subsequent crime under Fed. R. Evid. 404(b) – his arrest about two months later for a similar offense of engaging in sexual activities in the same SUV at the same Washington Sailing Marina parking area. We do not think this evidence should have been admitted. The “other bad act” admitted in this instance came too close to pure proximity evidence. But given the overwhelming evidence from the underlying January incident, we find no reversible error. The evidence from the beginning to the end of the January incident is compelling and incriminating as to all the charged counts. The error in admitting the evidence of the later incident was plainly harmless.

Convictions affirmed.

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