309 F. 3d 40 - United States v. E Arrington

Defendant Derrek Arrington appeals from his conviction for using a dangerous weapon — to wit, an automobile — to forcibly assault, resist, oppose, impede, intimidate, or interfere with three United States Park Police officers, in violation of 18 U.S.C. § 111(a) and (b). We reject Arrington's contention that the district court plainly erred in instructing the jury, as well as his contention that the evidence presented at trial was insufficient to sustain his conviction.

* On May 10, 2000, Arrington was indicted on four counts of violating federal law. Count 1 charged him with using a dangerous weapon to forcibly assault, resist, oppose, impede, intimidate, or interfere with three federal officers engaged in the performance of their duties, in violation of 18 U.S.C. § 111(a) and (b). Count 2 charged him with attempting to murder a federal officer, in violation of 18 U.S.C. § 1114. Count 3 accused Arrington of discharging a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). And Count 4 charged him with unlawfully possessing a firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2).

According to the government's evidence at trial, the case began on April 13, 2000, when United States Park Police officers Jonathan Daniels, Martin Yates, and Troy Eliason stopped Arrington's car because it lacked a front license plate. As Arrington produced his license and registration, Daniels observed a small ziplock bag with a residue of white powder on the floorboard. Upon Daniels' signal, the three officers retreated to the rear of the car, where Daniels informed them of the suspected drug paraphernalia and of his intention to ask Arrington and his (unidentified) passenger to get out of the car.

The officers then returned to the front of the automobile and asked Arrington to step outside. When Arrington instead reached for the gear shift, Daniels and Eliason reached through the open driverside door and grabbed him around the upper body, while Yates leaned in from the passenger's side to turn off the ignition. With all three officers still reaching inside the car, and two of them holding onto his body, the defendant shifted into drive and "floored it." 9/14/00 p.m. Tr. at 36. Although Yates was caught by the frame of the car door, he soon extricated himself, as did Eliason. Daniels, however, was dragged by Arrington's car for at least 50 feet, through an intersection, before he was able to free himself and fall to the ground.

All three Park Police officers then returned to their cars and pursued Arrington in what became a high speed chase. Arrington eventually lost control of his car and crashed into a curb, whereupon he fled on foot with the officers in pursuit.1 Daniels and an off-duty Metropolitan Police Department officer who had joined the chase finally caught up with Arrington. Yates and the off-duty officer testified that, during the ensuing struggle, Arrington shot Daniels in the face with a handgun. Yates and the other officer eventually subdued Arrington and arrested him.

Arrington testified at trial in his own defense, and the story he told of his flight from the traffic stop diverged significantly from that of the officers. Arrington testified that he decided to drive off because he felt threatened by the police. According to the defendant, he never had physical contact with any of the officers, and no officer had any part of his body in the car at the time Arrington drove off. After leading the officers on the car chase, Arrington jumped out of his car and began to run. According to Arrington, two officers caught up with him and wrestled him to the ground. During the struggle, a gun Arrington was carrying in his pocket accidentally discharged, and the bullet hit Officer Daniels.

The jury convicted Arrington on Counts 1 and 4, but deadlocked on Counts 2 and 3 — the attempted murder and discharging-a-firearm counts. The latter two counts were retried twice (along with a new, additional count), each trial ending in deadlock. After the third trial, the government dismissed the outstanding counts and the district court sentenced the defendant to 240 months' imprisonment on Counts 1 and 4. Arrington's only challenge here is to his conviction, on Count 1, for violating 18 U.S.C. § 111(a) and (b).

Subsection 111(a) provides, in relevant part, that anyone who "forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any [designated federal officer2] while engaged in or on account of the performance of official duties," shall be imprisoned for a maximum of three years. 18 U.S.C. § 111(a).3 Subsection 111(b) increases the maximum penalty to ten years for anyone who (so far as is relevant here), "in the commission of any acts described in [§ 111(a)], uses a deadly or dangerous weapon...." 18 U.S.C. § 111(b).4

Arrington raises two objections to his conviction for violating § 111(a) and (b): first, that the district court gave erroneous jury instructions regarding the elements of both the (a) and (b) offenses, and second, that the evidence presented at trial was insufficient to support his conviction for the (b) offense. In order to evaluate these claims, we first set forth the elements of § 111(a) and (b),5 a determination we make de novo. We then consider, in Parts III and IV, whether the jury was properly charged and whether the evidence was sufficient to support Arrington's conviction.

We begin with § 111(a). As the words of that subsection make clear, to violate its proscription a defendant must: (1) forcibly; (2) assault, resist, oppose, impede, intimidate, or interfere with; (3) a designated federal officer6; (4) while engaged in or on account of the performance of official duties. In addition, the defendant must have: (5) the "intent to do the acts" specified in the subsection. United States v. Kleinbart, 27 F.3d 586, 592 (D.C.Cir.1994) (quoting United States v. Feola, 420 U.S. 671, 686, 95 S.Ct. 1255, 1264-65, 43 L.Ed.2d 541 (1975)). Finally, as we indicated in United States v. Heid, 904 F.2d 69, 71 (D.C.Cir.1990), the adverb "forcibly" in the first element of the offense modifies each of the prohibited acts specified in the second element: that is, a defendant does not violate the statute unless he forcibly assaults or forcibly resists or forcibly opposes, etc. As the parties agreed at oral argument, so far all of this is common ground between them.

We turn next to the elements of § 111(b), and here, too, find some common ground. Again, the statutory language makes clear that, to qualify under this subsection, the defendant must: (1) use a deadly or dangerous weapon7; (2) in the commission of any of the acts described in the prior subsection. In addition, although the language merely states that the defendant must "use[]" the weapon, the government agrees — as do we — that: (3) the defendant must use the weapon intentionally. See Appellee's Br. at 26. As the Supreme Court stated in United States v. Feola, "in order to incur criminal liability under § 111 an actor must entertain ... the criminal intent to do the acts therein specified," 420 U.S. at 686, 95 S.Ct. at 1264-65, and the act specified in § 111(b) is the use of a deadly weapon. Accordingly, intent to use the weapon is a necessary element, and a defendant who does so purely by accident does not come within the scope of § 111(b).

We now reach the point of the parties' dispute. The foregoing is sensible enough, Arrington says, when the weapon at issue is one that is inherently deadly, like a gun. But what if the weapon is one that is deadly only if used in a certain manner, like Arrington's car? To this query, the government responds that a distinction between the two kinds of weapons is indeed appropriate. For an object that is not inherently deadly, the government concedes that the following additional element is required: (4) the object must be capable of causing serious bodily injury or death to another person and the defendant must use it in that manner. Appellee's Br. at 19; see United States v. Murphy, 35 F.3d 143, 147 (4th Cir.1994); 1 LEONARD B. SAND ET AL., MODERN FEDERAL JURY INSTRUCTIONS (CRIMINAL) ¶ 14.01, at 14-25 (2002); 2 KEVIN F. O'MALLEY ET AL., FEDERAL JURY PRACTICE & INSTRUCTIONS (CRIMINAL) § 24.06, at 68, 71 (5th ed.2000). That is, for a car to qualify as a deadly weapon, the defendant must use it as a deadly weapon and not simply as a mode of transportation.

Arrington, however, asks us to add a fifth requirement. It is not enough, he argues, that a defendant intend to use the object; nor is it enough that he actually use the object in a deadly manner. In addition, Arrington contends, the defendant must intentionally use the object as a weapon.

We must state at the outset that, in light of the other elements of the (b) offense, we see little practical difference between the positions of the parties. When asked at oral argument to posit a set of circumstances in which adding Arrington's fifth element would make a difference, the government was unable to suggest one. Arrington, for his part, did propose such a scenario: he contended that without the fifth element, a jury could convict a defendant for using a car merely as a means of escape, rather than as a deadly or dangerous weapon.8 Although the government agrees that the use of a car merely to effectuate an escape would not qualify under the statute, it contends that its construction of § 111(a) and (b) would exclude a conviction for such use. Appellee's Br. at 20-21. We agree. The use of a car purely for flight would not satisfy the fourth element of § 111(b): that the object be used in a deadly or dangerous manner. Nor would Arrington's scenario satisfy the first element of § 111(a), applicable to the (b) offense by incorporation, because it would not involve the element of force.9

In the end, however, the decisive question is not whether the element Arrington proposes would make any difference in this or other cases, but whether Congress intended it to be an element of the offense. We discern no evidence of such congressional intent. Arrington's proposed element is certainly not suggested by the language of § 111(b), which simply requires that the defendant "use" a deadly or dangerous weapon in the commission of the acts described in § 111(a).10 Nor is § 111(b) bereft of a mens rea requirement. Conviction requires both the intent to commit one of the acts specified in § 111(a), and the intent to use the object that constitutes the deadly weapon. Finally, such evidence of legislative intent as exists counsels against adding anything further. As the Supreme Court noted in Feola, Congress intended § 111 to protect federal officers to the maximum extent possible, 420 U.S. at 684, 95 S.Ct. at 1263-64, a consideration that led the Feola Court to reject an "unexpressed requirement" that the defendant know that his intended victim is a federal officer:

[I]n order to effectuate the congressional purpose of according maximum protection to federal officers by making prosecution for assaults upon them cognizable in the federal courts, § 111 cannot be construed as embodying an unexpressed requirement that an assailant be aware that his victim is a federal officer. All the statute requires is an intent to assault, not an intent to assault a federal officer.

Id.

Rejecting the "unexpressed requirement" proposed by Arrington, one with an even less persuasive appeal to fairness than that proposed in Feola, follows a fortiori. In Feola, the Court responded with little sympathy to the claim that it would be unfair to convict a defendant who did not know that his victim was a federal officer:

This interpretation poses no risk of unfairness to defendants. It is no snare for the unsuspecting. Although the perpetrator ... may be surprised to find that his intended victim is a federal officer in civilian apparel, he nonetheless knows from the very outset that his planned course of conduct is wrongful. The situation is not one where legitimate conduct becomes unlawful solely because of the identity of the individual or agency affected.

Id. at 685, 95 S.Ct. at 1264. Similarly, there is certainly no "snare for the unsuspecting" in the absence of the element sought by Arrington. To convict a defendant of the § 111(b) offense, the jury must find (inter alia) that he forcibly assaulted (or forcibly resisted, etc.) a federal officer, that he did so intentionally, that he used a dangerous weapon in the commission of that act, and that he used the weapon intentionally. Any defendant who engages in such behavior knows "from the very outset that his planned course of conduct is wrongful." Id. Accordingly, we have no warrant to impose the "unexpressed" offense element advocated by Arrington.11

Having determined the elements of the § 111(b) offense, we now proceed to Arrington's argument that the district court erroneously instructed the jury as to those elements in two respects. The first of these — Arrington's contention regarding § 111(b)'s dangerous weapon element — is readily dismissed. Although the court instructed that the government had to prove both that Arrington committed one of the acts specified in § 111(a) "while using a deadly or dangerous weapon," and that he "intentionally" used the weapon, 9/18/00 a.m. Tr. at 20-21, Arrington contends that the court should also have required the government to prove that he intentionally used his car as a weapon. Since, as we have just held, that kind of intent is not an element of the offense, the court's failure to so instruct the jury did not constitute error.12

Arrington's second complaint is that the district court erred by failing to instruct the jury that the term "forcibly" in § 111(a) modifies not only the proscribed act of assault, but each of the alternatives as well: that is, the government must prove that the defendant forcibly assaulted, forcibly resisted, forcibly opposed, forcibly impeded, forcibly intimidated, or forcibly interfered with a federal officer. Because Arrington did not object to the court's instruction at trial, we review this complaint solely to determine whether the district court committed plain error. FED. R.CRIM. P. 52(b); see United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993).

As we have discussed in Part II above, Arrington is correct in contending that the adverb "forcibly" modifies each of the verbs it precedes, and not only "assault." See Heid, 904 F.2d at 71; see also United States v. Schrader, 10 F.3d 1345, 1348-50 (8th Cir.1993); United States v. Giampino, 680 F.2d 898, 902 (2d. Cir.1982); Long v. United States, 199 F.2d 717, 718-20 (4th Cir.1952). The government concurs. See Appellee's Br. at 29. In order to avoid uncertainty, it is therefore the better practice for the trial court to advise the jury, along the lines approved in Heid, that "`[b]efore you can find the defendant guilty, you must find beyond a reasonable doubt that the defendant acted forcibly.'" 904 F.2d at 71.13 Here, the court did not give such guidance, but rather simply instructed that an essential element of the offense was that "the defendant forcibly assaulted, resisted, opposed, impeded, intimidated, or interfered with" one of the officers. 9/18/00 a.m. Tr. at 20.

But while we would prefer a more explicit instruction, we cannot say that the instruction given by the district court constituted plain error. Nor need we decide whether the instruction was error at all, because any error certainly was not "plain." To the contrary, the instruction tracked the statutory language, and it is precisely that language that caused us to infer that "forcibly" is applicable to each of the prohibited acts in the first place. Because this construction seems to us to be the obvious reading of the statutory language,14 the court's use of that language did not constitute plain error.

Arrington also argues that the district court further confused the situation because, after reading the above-quoted instruction, it subsequently referred to this element as one requiring "forcible assault," without continuing to name the alternative prohibitions.15 In context, we think it clear that the judge simply used "forcible assault" as a shorthand for the entire list of prohibited acts,16 and we expect that the jury would have understood as much. To the extent that the jury did not understand, however, any confusion was likely to favor the defendant, as it would have caused the jury to believe that proof of a different act — such as forcible resistance or forcible opposition — was insufficient for conviction.

Finally, Arrington contends that the evidence presented at his trial was insufficient to support his conviction under § 111(b). Our review of such a challenge is limited to determining "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2783, 61 L.Ed.2d 560 (1979) (emphasis in original).

Although Arrington does not dispute that the evidence was sufficient to satisfy the requirements of § 111(a), see Appellant's Br. at 11; Reply Br. at 3 n.1, he contends that it did not meet the additional requirements of § 111(b). In his view, the evidence "established no more than that [he] used his car to try to flee from the officers." Appellant's Br. at 17.17 There was, to be sure, evidence from which a reasonable jury could have reached that conclusion: namely, Arrington's own testimony that he had no physical contact with the officers and that no part of any of their bodies was in the car at the time he hit the gas. But we are required to view the evidence in the light most favorable to the prosecution, not the defendant, and from that perspective there is no question that a reasonable juror could have found a violation of § 111(b).

The Park Service officers testified that they reached into Arrington's car and grabbed the defendant around his upper body. At that point, Arrington reached down, put the gearshift into the drive position, and "took off" — throwing two of the officers away from the car and dragging another for at least 50 feet through an intersection. Such testimony was sufficient for a reasonable juror to find that Arrington forcibly assaulted the officers, that he did so intentionally, that he used his car in the commission of that assault, that he used his car intentionally, and that he used the car as a deadly weapon. Nothing more is required to sustain a conviction for violating § 111(b).

For the foregoing reasons, we conclude that the district court did not plainly err in charging Arrington's jury regarding the elements of 18 U.S.C. § 111(a) and (b), and that the evidence was sufficient to sustain his conviction. The judgment of the district court is therefore

Affirmed.