United States v. Davis, No. 10-4104 (2d Cir. 2012)
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Defendant appealed from convictions related to narcotics offenses and resisting arrest. The court affirmed the convictions on the narcotics counts but vacated his conviction for resisting arrest where there was no evidence that he engaged in any conduct whatsoever that demonstrated a desire to injure an agent or would cause an agent to apprehend immediate injury.
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10-4104-cr United States of America v. Deitron Davis 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2012 (Argued: February 27, 2012 Decided: August 24, 2012) Docket No. 10-4104-cr -----------------------------------------------------x UNITED STATES OF AMERICA, Appellee, -- v. -DEITRON DAVIS, Defendant-Appellant. -----------------------------------------------------x B e f o r e : WALKER, LYNCH and DRONEY, Circuit Judges. Appeal from a judgment of the United States District Court 25 for the Eastern District of New York (Frederic Block, Judge) 26 convicting defendant of narcotics offenses and resisting arrest. 27 Appellant challenges his convictions as based on insufficient 28 evidence. 29 further proceedings. 30 31 32 33 34 35 36 37 38 39 We AFFIRM in part and VACATE in part, and REMAND for BRUCE R. BRYAN, Syracuse, NY, for Appellant. THOMAS M. SULLIVAN, Assistant U.S. Attorney for the Eastern District of New York (Susan Corkery, on the brief), for Loretta E. Lynch, U.S. Attorney for the Eastern District of New York, for Appellee. 1 1 JOHN M. WALKER, JR., Circuit Judge: 2 Defendant-Appellant Deitron Davis appeals from a judgment of 3 the United States District Court for the Eastern District of New 4 York (Frederic Block, Judge), following a jury trial, convicting 5 him of narcotics offenses and resisting arrest. 6 argues that (1) there was no evidence from which a jury could 7 make the requisite finding that he knew that the criminal scheme 8 at issue involved narcotics distribution, and (2) evidence that 9 he fled from the police and struggled against being handcuffed 10 did not support a conviction for misdemeanor resisting arrest. 11 We hold that the evidence supported Davis s convictions for the 12 narcotics charges but not for resisting arrest. 13 AFFIRM as to the former charges but VACATE and REMAND with 14 instructions to dismiss the latter. 15 16 On appeal, Davis We therefore BACKGROUND I. Factual Background 17 The evidence at trial demonstrated the following: 18 On June 2, 2008, employees of Forward Air shipping company s 19 Columbus, Ohio branch received certain damaged crates that were 20 in transit from Phoenix, Arizona, to JFK Airport in New York 21 City. 22 the packages and discovered what appeared to be plastic-wrapped 23 bales of marijuana. 24 shipment had been sent from Phoenix by Carl Paplow. 25 of lading stated that the consignee was Robert Francis and that In accordance with company policy, the employees opened Forward Air s records revealed that the 2 The bill 1 the crates contained rims, tires and accessories, [and] audio 2 parts, Appendix ( App. ) 23. 3 discovery to local authorities, who contacted the DEA s New York 4 office. 5 destination in the normal course for a controlled delivery. 6 The employees reported their The DEA requested that the crates be sent on to their The crates arrived at JFK on June 3 and Forward Air turned 7 them over to local DEA agents. The agents searched the crates 8 pursuant to a warrant and discovered 258 kilograms of marijuana. 9 They removed the marijuana, re-weighted the crates and returned 10 them to Forward Air s JFK branch. 11 custody, someone (apparently not Davis) sought to retrieve the 12 shipment from Forward Air s JFK branch using a driver s license 13 for Robert Francis, but was turned away as the crates were not 14 then available. 15 While the crates were in DEA On June 3, the day the crates arrived in New York, Davis s 16 friend Kieama Hyman and her friend Sherelle (whose last name does 17 not appear in the record) called Davis, looking for something to 18 do. 19 drove to his cousin s house nearby. 20 started driving crazy as he neared the house, App. 71, which 21 Hyman interpreted as Davis trying not to be seen. 22 arrived at the house, Davis went inside while the two women 23 waited in the car. 24 had identification. 25 her if she would help pick up some rims for his car. Davis picked the two women up in his black Nissan Maxima and According to Hyman, Davis Once they Davis returned and asked Hyman whether she When she responded that she did, Davis asked 3 Hyman 1 agreed. 2 cars to a gold Toyota Avalon. 3 fit inside the Maxima, though Hyman did not think the Avalon was 4 much bigger. 5 Depot. 6 for about five minutes. 7 accompanied now by the white van, proceeded to Forward Air s JFK 8 facility. 9 Davis drove back and forth at least twice before parking in 10 11 Before they left Davis s cousin s house, Davis switched He claimed that the rims would not Davis drove Hyman and Sherelle to a nearby Home He then left the car and spoke to a man in a white van He returned to the Avalon and, According to a surveillance officer at the facility, front of Forward Air. App. 52. After stopping at Forward Air, Davis left the Avalon and 12 spoke once more with the driver of the white van. 13 Hyman a copy of the bill of lading for the shipment and told her 14 to go in and pick up the rims. 15 where Hyman presented the bill of lading and her identification 16 and signed some paperwork. 17 pulled up to the Forward Air bay and loaded the crates inside. 18 Once the crates were loaded in the van, Davis and the two women 19 drove off in the Avalon, followed by the white van -- and by DEA 20 agents. 21 He then gave Hyman and Sherelle went inside, The driver of the white van then Circling the blocks, Davis remarked that they were being 22 followed. He pulled over and shouted at Hyman and Sherelle to 23 get out of the car. 24 pick them up and drove off. 25 strobe lights; the white van pulled over but Davis sped off in 26 the Avalon. As they did, Davis said he would be back to The agents then turned on their 4 1 The officers arrested Hyman and Sherelle. While under 2 arrest, Hyman received a phone call from Davis which she answered 3 at the officers instruction. 4 women up at a nearby intersection, but to make sure they were not 5 followed. 6 where an agent observed Davis walking nearby. 7 Davis said he would pick the two Hyman and Sherelle walked towards the intersection, The agent who saw Davis identified himself and drew his 8 weapon, at which point Davis ran. 9 approximately ten minutes, during which time Davis ignored many 10 commands to stop and the agent several times caught up with and 11 struck Davis -- a large man at six feet seven inches -- with his 12 baton. 13 joined the chase and tackled Davis. 14 the ground, Davis placed his hands under his body and was 15 fighting [and] resisting against being handcuffed for one or 16 two minutes, App. 123, though he ultimately was subdued, 17 handcuffed and arrested. 18 threatened or struck out at any of the agents. 19 Davis did not fight back. The agent chased Davis for Eventually, other agents While pinned stomach-down on There was no evidence that Davis After arresting Davis, the agents searched him and 20 recovered, inter alia, his driver s license and a Jet Blue 21 Airways receipt listing Davis as a passenger on a May 6, 2008 22 flight from Phoenix to JFK. 23 that Davis had been on that flight and that he previously had 24 flown from JFK to Phoenix on May 2. 25 before Davis had boarded the May 2 flight, an FBI agent had asked They later confirmed with Jet Blue 26 5 They also learned that 1 him why he had no carry-on or checked luggage. Davis had 2 responded that he planned to buy clothes in Phoenix. 3 Davis was interviewed by DEA agents after his arrest. 4 other things, he claimed not to have heard of or been to Forward 5 Air. 6 II. 7 Among Procedural Background Davis was tried for conspiracy to distribute marijuana in 8 violation of 21 U.S.C. §§ 841(b)(1)(B)(vii) and 846; attempting 9 to possess marijuana with intent to distribute in violation of 21 10 U.S.C. § 841 (b)(1)(B)(vii); and the misdemeanor of resisting 11 arrest in violation of 18 U.S.C. § 111(a)(1). 12 him on all three counts. 13 white van were not charged because there was no evidence 14 contradicting their claims that they were unaware that the crates 15 contained marijuana. 16 A jury convicted Hyman, Sherelle and the driver of the Davis moved for a judgment of acquittal under Fed. R. Crim. 17 P. 29. 18 there was insufficient evidence that he knew that the shipment 19 contained a controlled substance. 20 The district court disagreed: 21 22 23 24 25 26 27 28 29 30 With regard to the narcotics convictions, he argued that Special Appendix ( S.A. ) 2. [T]he evidence, taken in the light most favorable to the government, . . . established, inter alia, that Davis traveled to Arizona (the source of the shipment) less than a month before the shipment arrived; that he possessed a bill of lading for the shipment (albeit under another name); and that he told [Hyman] that he was excited to go pick up his rims. A jury could reasonably infer from those facts that Davis traveled to Arizona to arrange the shipment and, therefore, that he was the intended recipient of the shipment. 6 1 Id. at 3. 2 pointed out that the government had offered no evidence that 3 Davis had directed any force at the arresting officers. 4 contended that evidence demonstrating only that he had not 5 yielded to arrest was legally insufficient for a conviction. 6 district court rejected this argument as well, concluding that 7 Davis s willful use of physical force in making it difficult for 8 officers to handcuff him permitted a conviction for resisting 9 arrest. 10 As to his conviction for resisting arrest, Davis He The The district court entered a judgment of conviction on all 11 counts and sentenced Davis principally to a 60-month term of 12 imprisonment. 13 raised in his Rule 29 motion. Davis appeals from that judgment on the grounds 14 15 16 DISCUSSION I. Standard of Review We review challenges to evidentiary sufficiency de novo, 17 view[ing] the evidence presented in the light most favorable to 18 the government, and . . . draw[ing] all reasonable inferences in 19 its favor. 20 2002) (quoting United States v. Autuori, 212 F.3d 105, 114 (2d 21 Cir. 2000)). 22 evidence supporting a conviction faces a heavy burden. 23 States v. Glenn, 312 F.3d 58, 63 (2d Cir. 2002) (internal 24 quotation marks omitted). 25 as any rational trier of fact could have found the essential United States v. Szur, 289 F.3d 200, 219 (2d Cir. A defendant challenging the sufficiency of the United We must uphold the conviction as long 7 1 elements of the crime beyond a reasonable doubt. 2 Virginia, 443 U.S. 307, 319 (1979). 3 II. Jackson v. Convictions for the Narcotics Offenses 4 With regard to Davis s convictions for conspiring to 5 distribute marijuana and attempting to possess marijuana with 6 intent to distribute, the question before us is straightforward: 7 Was the evidence at trial legally sufficient to support a finding 8 that Davis knew that the shipped crates contained a controlled 9 substance? 10 To prove that a person possessed a controlled substance with 11 intent to distribute, the government must prove that the 12 defendant knew he was dealing with a controlled substance. 13 United States v. Torres, 604 F.3d 58, 65-66 (2d Cir. 2010). 14 same holds true for drug conspiracy charges. 15 government need not prove that the defendant knew the specific 16 drug at issue, but only that he was dealing with some controlled 17 substance. 18 Cir. 1978). The See id. at 66. The See United States v. Morales, 577 F.2d 769, 776 (2d 19 On appeal, as he did in his Rule 29 motion before the 20 district court, Davis relies on a line of this Court s decisions 21 reversing convictions for insufficient evidence that the 22 defendant knew the specific object of the criminal scheme at 23 issue. 24 Cir. 2008), this Court reversed the conviction of a taxi driver 25 who was scheduled to pick up a drug smuggler at an airport. For example, in United States v. Ogando, 547 F.3d 102 (2d 8 We 1 held that the evidence -- which consisted of the defendant s 2 presence at the airport, earlier presence at another airport 3 where another co-conspirator was arrested, and associations with 4 certain other co-conspirators -- simply show[ed] that 5 [defendant] was a livery cab driver regularly used by members of 6 this conspiracy. 7 (defendant s suspicious behavior in attempting to take delivery 8 of narcotics shipment did not indicate knowledge that the 9 shipment contained drugs); United States v. Lorenzo, 534 F.3d Id. at 108; see also Torres, 604 F.3d at 70-71 10 153, 160-61 (2d Cir. 2008) (defendant s periodic involvement with 11 conspirators, including transferring money to one, was indicative 12 of illegal behavior but did not demonstrate knowledge that the 13 conspiracy involved narcotics); United States v. Rodriguez, 392 14 F.3d 539, 546-48 (2d Cir. 2004) (evidence demonstrated only that 15 defendant served as a lookout for some sort of illicit 16 transaction, not that he knew it was a drug transaction 17 specifically); United States v. Friedman, 300 F.3d 111, 126 (2d 18 Cir. 2002) (evidence of calls between conspirator and defendant, 19 and that defendant furnished guns to conspirator, did not 20 demonstrate that defendant knew that the object of the conspiracy 21 was extortion); United States v. Samaria, 239 F.3d 228, 236-38 22 (2d Cir. 2001) (gypsy cab driver s presence in car with 23 conspirators, and assistance with loading non-transparent boxes 24 containing stolen credit card information, did not demonstrate 25 knowledge of conspiracy to commit credit card fraud), abrogated 26 9 1 on other grounds, United States v. Huezo, 546 F.3d 174, 180 n.2 2 (2d Cir. 2008). 3 In each of these cases, save Torres, the defendant played a 4 role subordinate to that of the principal engaged in the criminal 5 conduct charged, and the defendant plausibly could have fulfilled 6 that role without knowing the scheme s criminal nature. 7 it is conceivable that the criminal enterprises at issue could 8 have functioned as planned without the requisite criminal 9 knowledge of the taxi driver (Ogando), the money transferor That is, 10 (Lorenzo), the lookout (Rodriguez), the frequent caller and gun 11 supplier (Friedman), and the driver and box loader (Samaria). 12 This case is easily distinguishable from those cases, in which 13 the overall circumstances of each case did not support a finding 14 beyond a reasonable doubt that the defendant had the requisite 15 knowledge. 16 directly or by inference, that Davis played a principal role, 17 even a managerial one, in the drug conspiracy and for that reason 18 would have reasonably possessed the requisite criminal knowledge. 19 The evidence in this case established, either Torres, 604 F.3d 58, in which we reversed a conviction for 20 conspiracy to distribute cocaine, presented a factual scenario 21 closer to this one. 22 evidence here is insufficient to prove his knowledge that the 23 Forward Air packages contained a controlled substance. 24 Torres, the defendant Torres and several other men, in suspicious 25 fashion, had attempted to receive a UPS delivery of certain bulky 26 packages addressed to Torres. Davis relies upon it to argue that the In They greeted the deliveryman 10 1 outside the destination address, presented a driver's license for 2 Torres that listed him as living at a different address, and 3 followed the deliveryman after he refused to turn over the 4 packages. 5 packages contained cocaine and staged a controlled delivery at a 6 UPS store. 7 the packages, and this time was arrested. 8 conviction, this Court concluded that the evidence supported 9 findings that Torres had a connection with the Packages and Eventually, UPS and the police discovered that the Once again, Torres suspiciously attempted to receive Reviewing his 10 that, based on his suspicious behavior, he was most likely aware 11 that the Packages contained contraband of some kind. 12 But the record did not contain any evidence that Torres knew the 13 Packages contained narcotics, such as evidence as to the nature 14 of Torres s associations with the persons who shipped the cocaine 15 or with the persons who expected to distribute it. 16 70-71. 17 other than his efforts to gain possession of the Packages, this 18 Court held that there was no evidence that Torres knew of the 19 Packages contents. 20 Id. at 69. Id. at Because [t]here was no evidence of any conduct by Torres Id. at 71. There may be tension between Torres and decisions in other 21 circuits as to whether an inference of guilty knowledge may be 22 drawn from suspicious behavior of an intended recipient of a 23 narcotics package. 24 464, 467 (7th Cir. 2001) (collecting cases for the proposition 25 that [a] jury may infer a defendant s guilty knowledge based on 26 the suspicious circumstances surrounding receipt of a drug See United States. v. Hernandez, 17 F. App x 11 1 shipment ); see also, e.g., United States v. Hernández, 218 F.3d 2 58, 66-67 (1st Cir. 2000) (affirming convictions based on, inter 3 alia, the facts that one defendant was the intended recipient of 4 the shipment and thereafter controlled the packages, and another 5 defendant drove evasively after taking possession of the 6 packages); United States v. Gbemisola, 225 F.3d 753, 759-60 (D.C. 7 Cir. 2000) ( The Southeast Asian shippers placed heroin in the 8 false bottoms of the pots - in an amount (and value) the jury 9 could reasonably have doubted they would have entrusted to 10 recipients who thought they were merely importing artifacts, and 11 in a location that would have been particularly risky if an 12 innocent recipient had decided to use the cooking pots for 13 their apparent purpose. ); United States v. Brown, 33 F.3d 1014, 14 1015-16 (8th Cir. 1994) (affirming the conviction of a defendant 15 who tried to take receipt of a UPS delivery of drugs in facts 16 resembling those in Torres); cf. United States v. Quilca Carpio, 17 118 F.3d 719, 722 (11th Cir. 1997) ( [A] prudent smuggler is not 18 likely to entrust such valuable cargo to an innocent person 19 without that person s knowledge. (internal quotation marks 20 omitted)). 21 case, we have no doubt, based on all the evidence, that the jury 22 permissibly could have inferred Davis s guilty knowledge. 23 But cases of this sort are fact-dependent. In this First, the evidence here did not link Davis only to the 24 receipt of the drugs but also to their initial shipment. 25 traveling without luggage, flew from New York to Phoenix, where 26 the shipment originated, a month before he attempted to receive 12 Davis, 1 the crates. 2 the government and as the district court correctly concluded, 3 [a] jury could reasonably infer . . . that Davis traveled to 4 Arizona to arrange the shipment. 5 logically can be inferred that one who arranges a shipment knows 6 its contents, the jury here easily could have found from the 7 totality of the evidence that Davis knew precisely what was in 8 the shipped packages. 9 Viewing that evidence in the light most favorable to S.A. 3. And because it Second, as noted earlier, the evidence showed that Davis had 10 an authoritative role in the criminal scheme. See United States 11 v. Cruz, 363 F.3d 187, 199 (2d Cir. 2004) (a jury may reasonably 12 infer guilty knowledge from evidence that the defendant exercised 13 authority within the conspiracy itself); Samaria, 239 F.3d at 235 14 (same). 15 - choosing when to pick up the crates, how to pick up the 16 crates, and who would pick up the crates. 17 recruited Kieama Hyman and her friend to pick up the crates even 18 though he easily could have done so himself; switched cars at his 19 cousin s house; directed Hyman to use her identification to 20 retrieve the crates from Forward Air; and it appears that he 21 obtained a van with a driver to pick up the crates. 22 States v. Medina, 32 F.3d 40, 44 (2d Cir. 1994) (affirming 23 conviction in part because defendant approved participation of an 24 additional co-conspirator and supplied a gun); United States v. 25 Tussa, 816 F.2d 58, 63 (2d Cir. 1987) (affirming conviction of 26 defendant who took part in the negotiations leading to a drug 27 delivery). He controlled the circumstances surrounding the pick up 13 Specifically, Davis See United 1 Third, the evidence showed that Davis concealed his 2 involvement in the criminal conspiracy: the crates were not 3 addressed to him (but to Robert Francis ); he recruited another 4 person without knowledge of the true contents of the crates to 5 pick them up; and he lied to this person by telling her that he 6 did not have his driver s license even though he did. 7 evidence supports an inference of Davis s knowledge of the 8 crates contents. 9 the name of the consignee was fabricated supported the This See, e.g., Hernandez, 218 F.3d at 66 ( That 10 conclusion that the defendant knew the container s contents.); 11 United States v. Johnson, 57 F.3d 968, 972 (10th Cir. 1995) 12 ( Similarly probative of [defendant s] guilty knowledge is the 13 fact that [defendant] listed on the airbill a false name and 14 nonexistent address for the package s destination. ). 15 facts, along with the fact that the bill of lading identified the 16 recipient as Robert Francis rather than Davis, and a person 17 claiming to be Robert Francis first tried to retrieve the 18 crates, are inconsistent with Davis s statements to Hyman that 19 the crates contained rims for his car. 20 These Finally, Davis s possession of the bill of lading supports 21 an inference that he had the requisite knowledge. 22 together with his recruitment of select people, it gave him not 23 only the prospect[] of having sole dominion over the [crates], 24 see Torres, 604 F.3d at 71, but sole dominion itself. 25 Furthermore, as we previously have observed, possession of 26 documents relat[ing] to the crime may support an inference of 27 14 For one, taken 1 knowledge. 2 235 (same). 3 Cruz, 363 F.3d at 199; see also Samaria, 239 F.3d at Taken together, these circumstances easily permitted an 4 inference that Davis, far from being an unwitting courier for a 5 drug-distribution conspiracy, was a willing (if not central) 6 participant who knew that the shipment contained narcotics. 7 United States v. Stewart, 485 F.3d 666, 671 (2d Cir. 2007) 8 (collecting cases for the proposition that a defendant s guilty 9 knowledge may be established through circumstantial evidence ). 10 We therefore have no difficulty affirming Davis s convictions on 11 the narcotics counts. 12 III. Conviction for Resisting Arrest 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 See The conviction for resisting arrest, however, presents a different picture. 18 U.S.C. § 111 provides: (a) In general.--Whoever-(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with [a U.S. officer or employee] while engaged in or on account of the performance of official duties . . . shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both. (b) Enhanced penalty.--Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both. 37 15 1 Davis was tried and convicted under the misdemeanor clause in 2 Section 111(a). 3 permitted the jury to find, beyond a reasonable doubt, that Davis 4 forcibly assault[ed], resist[ed], oppose[d], impede[d], 5 intimidate[d], or interfere[d] with [a U.S. officer or employee] 6 while engaged in or on account of the performance of official 7 duties and, in doing so, committed simple assault. We therefore must decide whether the evidence 8 A. Simple Assault Under Section 111(a) 9 In United States v. Chestaro, 197 F.3d 600 (2d Cir. 1999), 10 we considered a vagueness challenge to the predecessor version of 11 Section 111, which was identical to the current version in 12 relevant part.1 13 assault, which delineates misdemeanor conduct, was not clearly 14 defined and that the statute therefore did not sufficiently 15 distinguish between misdemeanors and felonies. 16 noted the settled principle of statutory construction that, 17 absent contrary indications, Congress intends to adopt the common 18 law definition of statutory terms. 19 States v. Shabani, 513 U.S. 10, 13 (1994)). 20 that the term simple assault appears elsewhere in the U.S. Code 21 - in 18 U.S.C. § 113 - and that it had been held to embrace 22 the common law meaning in that context. 1 2 3 4 5 6 7 8 The appellant in that case argued that simple 1 We disagreed. We Id. at 605 (quoting United We also pointed out Chestaro, 197 F.3d at Section 111(a) s felony clause, not at issue here, previously provided that in all other cases, [the perpetrator] would be fined under this title or imprisoned not more than three years, or both. In 2002, Congress boosted the maximum prison term for the felony to eight years. And in 2008, Congress replaced in all other cases with the language where such acts involve physical contact with the victim of that assault or the intent to commit another felony. 16 1 605 (quoting United States v. Stewart, 568 F.2d 501, 504 (6th 2 Cir. 1978)). 3 Section 111(a), incorporated the established common law 4 definition of the phrase: a crime, not involving touching, 5 committed by either a willful attempt to inflict injury upon the 6 person of another, or by a threat to inflict injury upon the 7 person of another which, when coupled with an apparent present 8 ability, causes a reasonable apprehension of immediate bodily 9 harm. We therefore held that simple assault, as used in Chestaro, 197 F.3d at 605, 606 (internal quotation marks 10 omitted); see also United States v. Vallery, 437 F.3d 626, 631 11 (7th Cir. 2006) ( Under the common law, physical contact is the 12 line of demarcation between simple assault and battery. ). 13 Following Chestaro, we clarified that simple assault 14 retains its common law definition in the context of the current 15 version of Section 111(a). 16 F.3d 433, 440 (2d Cir. 2009). 17 of the misdemeanor of resisting arrest under Section 111(a), he 18 necessarily must have committed common law simple assault. 19 id. 20 See United States v. Hertular, 562 Thus, for a defendant to be guilty See We recognize that there is disagreement among the federal 21 courts of appeals in interpreting Section 111(a) s use of simple 22 assault. 23 is that Section 111(a) appears to prohibit six different types 24 of actions - assaulting, resisting, opposing, impeding, 25 intimidating and interfering - only one of which is assault, 26 but then it draws the line between misdemeanors and felonies 27 solely by referencing the crime of assault. The main problem, as explained by the Ninth Circuit, 17 United States v. 1 Chapman, 528 F.3d 1215, 1218-19 (9th Cir. 2008). 2 is unclear whether the statute prohibits acts of resistance, 3 opposition, impediment, intimidation, or interference that do not 4 also involve an underlying assault. 5 our sister circuits have taken the same approach as, or similar 6 approaches to, this Court - namely, requiring some form of 7 common law simple assault for Section 111(a) misdemeanor 8 convictions. 9 at 630-34; United States v. Hathaway, 318 F.3d 1001, 1008-09 10 Therefore, it Id. at 1219. Several of See Chapman, 528 F.3d at 1218-22; Vallery, 437 F.3d (10th Cir. 2003). 11 But two circuits have taken a different approach. 12 States v. Gagnon, 553 F.3d 1021 (6th Cir. 2009), the Sixth 13 Circuit, interpreting the predecessor version of Section 111, 14 opined that the approach taken by this Court and others 15 disregards five of the six actions Congress specifically 16 delineated and thus makes a great deal of what § 111 does say 17 entirely meaningless. 18 that in the context of Section 111(a), simple assault is not 19 limited to its common law meaning, but is a term of art that 20 includes the forcible performance of any of the six proscribed 21 actions in § 111(a) without the intent to cause physical contact 22 or to commit a serious felony. 23 Construing the current version of Section 111, the Fifth Circuit 24 followed the Sixth Circuit s lead. 25 Williams, 602 F.3d 313, 317 (5th Cir. 2010). 26 reasoned that the Sixth Circuit s reading avoid[s] rendering 27 superfluous the other five forms of conduct proscribed by Id. at 1026. In United That court therefore held Id. at 1027 (emphasis omitted). 18 See United States v. The Fifth Circuit 1 § 111(a)(1). 2 it more consonant with the dual purpose of the statute, which, 3 the Supreme Court has noted, is not simply to protect federal 4 officers by punishing assault, but also to deter interference 5 with federal law enforcement activities and ensure the integrity 6 of federal operations by punishing obstruction and other forms of 7 resistance. 8 678 (1975)). 9 Williams, 602 F.3d at 317. That court also found Id. (quoting United States v. Feola, 420 U.S. 671, While we do not find this reasoning to be without basis, we 10 ultimately are not persuaded by it. 11 statutory construction, [w]e begin with the statute s text. 12 United States v. Lyttle, 667 F.3d 220, 223 (2d Cir. 2012). 13 as we noted in Chestaro, it is well-settled that where a federal 14 criminal statute uses a common-law term of established meaning 15 without otherwise defining it, the general practice is to give 16 that term its common-law meaning. 17 U.S. 407, 411 (1957); see Chestaro, 197 F.3d at 605. 18 misdemeanor conduct under Section 111(a), Congress chose to use 19 the specific phrase simple assault, which as noted earlier has 20 a longstanding and precise meaning under the common law. 21 First, as in any task of And United States v. Turley, 352 In defining Second, not only does simple assault have an established 22 common law meaning, it does not appear to have a contrary meaning 23 in the vernacular, the U.S. Code or anywhere else. 24 would have been a peculiar phrase for Congress to employ for some 25 other, unspecified meaning - especially after courts had 26 assigned the phrase its common law meaning in the context of 27 Section 113. It therefore See United States v. Delis, 558 F.3d 177, 183 (2d 19 1 Cir. 2009). 2 the Fifth and Sixth Circuits in construing this law, has ever 3 understood simple assault as a term of art that includes the 4 forcible performance of [assaulting, resisting, opposing, 5 impeding, intimidating, or interfering] without the intent to 6 cause physical contact or to commit a serious felony. 7 Williams, 602 F.3d at 317 (quoting Gagnon, 553 F.3d at 1027) 8 (emphasis omitted). 9 to believe that Congress had that understanding. 10 Indeed, so far as we can tell, no court, except for See And our textual analysis gives us no reason Third, it bears noting that Congress continued its use of 11 simple assault in Section 111(a) when it amended the statute in 12 2008. 13 interpretation of simple assault discussed earlier.2 14 it appears that every court to have interpreted Section 111(a) s 15 use of simple assault before Congress amended the statute gave 16 the phrase its common law meaning.3 1 2 3 4 3 Indeed, One would think that 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 That amendment preceded the Fifth and Sixth Circuit s Although the Sixth Circuit interpreted the predecessor version of Section 111 in Gagnon, Congress had already amended the statute when that case was decided. See 553 F.3d at 1024 n.2. In Gagnon, the Sixth Circuit relied partly on the Eighth Circuit s earlier statement that in the context of § 111, the definition of simple assault is conduct in violation of § 111(a), which does not involve actual physical contact, a dangerous weapon, serious bodily injury, or the intent to commit murder or another serious felony. United States v. Yates, 304 F.3d 818, 822 (8th Cir. 2002); see also Gagnon, 553 F.3d at 1026 n.6. In Yates, however, the Eighth Circuit made clear that it adopted the common law meaning of simple assault and only then used the language contained in a neighboring statute to limit the definition further. See Yates, 304 F.3d at 821-22. In other words, the Eighth Circuit narrowed the common law meaning of simple assault for purposes of Section 111(a); it did not expand that meaning to include Section 111(a)(1) s five remaining acts. 20 1 Congress, in amending the statute, would have corrected such a 2 broad misreading had one existed. 3 Furthermore, we do not believe, as the Fifth and Sixth 4 Circuits have worried, that ascribing simple assault its common 5 law meaning render[s] superfluous the [non-assault] forms of 6 conduct proscribed by § 111(a)(1). 7 While we are not called upon today to interpret Section 111(a) s 8 felony clause, we note that the statute s five non-assault acts 9 would appear to be criminally prohibited by the felony clause Williams, 602 F.3d at 317. 10 where such acts involve . . . the intent to commit another 11 felony. 12 of the preference against interpretations of statutes that 13 render language superfluous. 14 U.S. 249, 253 (1992).4 Thus, our interpretation does not necessarily run afoul Conn. Nat l Bank v. Germain, 503 15 B. Davis s Conduct 16 To be guilty of the misdemeanor of resisting arrest, Davis 17 must have, inter alia, committed common law simple assault: a 18 crime, not involving touching, committed by either a willful 19 attempt to inflict injury upon the person of another, or by a 20 threat to inflict injury upon the person of another which, when 21 coupled with an apparent present ability, causes a reasonable 1 2 3 4 5 6 7 8 9 4 We recognize that the Fifth and Sixth Circuits interpretation of simple assault, as a broad term of art encompassing all of the actions listed in Section 111(a)(1), would better deter interference with federal law enforcement activities, which the Supreme Court has identified as part of Congress s intention in enacting Section 111. See Feola, 420 U.S. at 678. But we believe that the plain text of Section 111 and the other considerations described above command the interpretation that we have given it. 21 1 apprehension of immediate bodily harm. 2 605 (internal quotation marks omitted). 3 Chestaro, 197 F.3d at The evidence adduced at trial did not permit such a finding. 4 It showed only that Davis ran from a DEA agent and, when 5 ultimately tackled to the ground, struggled against being 6 handcuffed -- primarily by putting his hands under his stomach. 7 While one of the arresting agents (the one who had chased Davis 8 on foot) testified on direct examination that Davis was 9 fighting during his arrest, App. 123, any suggestion that Davis 10 was striking blows, rather than more passively resisting being 11 handcuffed, was retracted by the agent. 12 the agent testified that (1) Davis did not punch or attack anyone 13 during his arrest, (2) Davis was using his muscles to avoid 14 having the hands forced behind his back to be cuffed, App. 131- 15 32, and (3) certain injuries to the agent resulted from a fall 16 during the chase and not from any aggressions by Davis. 17 there was no evidence that Davis engaged in any conduct 18 whatsoever that demonstrated a desire to injure an agent or would 19 cause an agent to apprehend immediate injury. 20 21 22 23 On cross-examination, Thus, Davis s conviction for resisting arrest therefore must be overturned. CONCLUSION For these reasons, we AFFIRM the judgment of the district 24 court with respect to Davis s convictions on the narcotics 25 counts, but VACATE his conviction for resisting arrest. 26 REMAND with directions to dismiss the Section 111(a) count and 27 for resentencing consistent with this opinion. 22 We
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