Opposition Brief — Todd Stands Alone, Petitioner v. United States

Supreme Court briefApr 13, 2022

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No. 21-6826

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

TODD STANDS ALONE, PETITIONER

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

DAVID M. LIEBERMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

QUESTION PRESENTED

Whether

U.S.C.

petitioner

111(a)(1)

and

was

validly

(b),

where

convicted

refused

violating

obey

correctional officer’s order to vacate his cell, yelling at the

officer and brandishing a fire extinguisher.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 21-6826

TODD STANDS ALONE, PETITIONER

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-10a) is

reported at 11 F.4th 532.

The order of the district court (Pet.

App. 12a-27a) is unreported but is available at 2020 WL 2085304.

JURISDICTION

The judgment of the court of appeals was entered on August

23, 2021.

On November 9, 2021, Justice Barrett extended the time

within which to file a petition for a writ of certiorari to and

including January 3, 2022.

The petition for a writ of certiorari

was filed on December 31, 2021.

invoked under 28 U.S.C. 1254(1).

The jurisdiction of this Court is

STATEMENT

Following a bench trial in the United States District Court

for the Western District of Wisconsin, petitioner was convicted on

one count of inflicting bodily injury on a federal officer, in

violation of 18 U.S.C. 111(a)(1) and (b).

at 3a.

Pet. App. 28a; see id.

The district court sentenced petitioner to time served.

Id. at 29a.

The court of appeals affirmed.

Id. at 1a-10a.

Petitioner was a federal prisoner at a facility in

Wisconsin. Pet. App. 2a. After an inspection of his cell resulted

in the confiscation of items including a razor blade, petitioner

paced back and forth inside the prison unit, threw his clothes at

the door, and shouted at the officers.

Ibid.

The officer who had

conducted the initial inspection ordered petitioner to move to the

front of the unit.

Ibid.

Petitioner refused to comply, returned

to his cell, and continued to shout.

Ibid.

The officer followed

petitioner to his cell and advised that she would use pepper spray

if petitioner continued to resist.

Ibid.

Petitioner grabbed a

nearby fire extinguisher off the wall and lifted it to his chest,

which

point

the

officer

deployed

her

pepper

petitioner discharged the fire extinguisher.

Ibid.

spray,

and

The fire-

suppressant and pepper-spray chemicals blew toward the officer,

causing her to suffer visual impairment and chemical burns.

Ibid.

A grand jury in the Western District of Wisconsin charged

petitioner with one count of violating 18 U.S.C. 111(a)(1) and

(b).

Pet. App. 2a-3a.

Section 111 provides:

(a)

IN GENERAL.--Whoever--

(1) forcibly assaults, resists, opposes, impedes,

intimidates, or interferes with any person designated in

section 1114 of this title [i.e., a federal officer]

while engaged in or on account of the performance of

official duties; or

(2) forcibly assaults or intimidates any person

who formerly served as a person designated in section

1114 on account of the performance of official duties

during such person’s term of service,

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.

18 U.S.C. 111 (reprinted at Pet. App. 33a). The indictment charged

that petitioner “knowingly and forcibly resisted, intimidated, and

interfered with” the correctional officer “while she was engaged

in her official duties, and in doing so, inflicted bodily injury

to her.”

Pet. App. 3a (brackets omitted).

right to a jury trial.

Ibid.

Petitioner waived his

The day before trial, petitioner claimed for the first

time that his indictment was defective, on the theory that assault

is an essential element of every Section 111 offense.

3a.

Pet. App.

Petitioner disavowed that he was seeking dismissal of the

indictment, but maintained that he could not face the felony or

misdemeanor penalties in Section 111 because the indictment did

not

allege

the

commission

assault.

Ibid.

(noting

petitioner’s assertion that “he could be convicted only of an

infraction under 18 U.S.C. § 3559(a)(9)”).

The district court observed that “the government was sandbagged by the last minute, ex-parte disclosure of the theory of

defense,” and described petitioner’s “eve-of-trial disclosure” as

a tactic “to avoid the requirement in [Federal Rule of Criminal

Procedure] 12 that legal defenses like the one raised here must be

brought and resolved before trial.”

Pet. App. 13a-14a.

notwithstanding that “[t]he government

* * *

waiver

argument,”

the

court

declined

But

ha[d] a plausible

address

because

“[petitioner’s] legal defense fail[ed] on the merits.”

Id. at

14a.

The district court explained that “assault is not an implicit

element of conviction under § 111(b).”

Pet. App. 19a.

The court

observed that Section 111(a)(1) identifies “[t]he prohibited acts

* * *

with six verbs: ‘assaults, resists, opposes, impedes,

intimidates, or interferes.’”

Id. at 16a (quoting 18 U.S.C.

111(a)(1)).

And it accordingly reasoned that “[t]he disjunctive

‘or’ means that any one of these acts, if done forcibly to a

specified officer, violates the statute.”

Ibid.

The district court also analyzed “[t]he remainder of the

statute,” which “sets out the penalties that apply based on the

consequences of the prohibited acts.”

Pet. App. 16a.

It noted

that Section 111(a) authorizes “imprisonment of not more than a

year” for a “simple assault” and “imprisonment of not more than

eight years” “when the act in violation involves physical contact

with the ‘victim of that assault’” or “the intent to commit another

felony, with no victim specified,” ibid., while Section 111(b)

separately authorizes “imprisonment of not more than 20 years”

where the individual “either uses a deadly or dangerous weapon or

inflicts bodily injury” “in the commission of the acts defined in

[Section 111](a),” id. at 16a-17a.

“[n]othing

[Section

‘assault’ be committed.”

111](b)

The court observed that

expressly

Id. at 17a.

requires

that

any

And the court emphasized

that petitioner’s view of the statute as invariably requiring

assault

would

“render[]

five

the

six

verbs

[Section

111(a)(1)] superfluous”; “undermine[] the purpose of the statute,

which is to protect the physical safety of federal officers and

the performance of their duties”; and “def[y] common sense” by

allowing a defendant who “forcibly resist[s] a federal officer

performing her duties, [and] inflict[s] great bodily harm,” to

escape the statute’s reach.

Id. at 19a.

As the finder of fact in the bench trial, the district court

found petitioner guilty of the offense, because he had “resisted

[the correctional officer] by refusing to comply with her orders,”

“interfered with her efforts to control the unit by discharging

the fire extinguisher,” and “intimidated her by yelling at her, by

raising the fire extinguisher in front of her, and by discharging

the fire extinguisher.”

Pet. App. 25a.

The court found that

petitioner had “intended to resist, interfere, and intimidate”;

that “[e]ach of the[] acts was done forcibly” and “inspired in

[the officer] a fear of bodily harm or death”; and that petitioner

caused

“bodily

injury”

under

Section

111(b)

because

the

correctional officer “suffered bodily injury from the discharge of

the fire extinguisher.”

time served.

Ibid.

The court sentenced petitioner to

Id. at 29a.

The court of appeals affirmed in a published opinion.

Pet. App. 1a-10a.

The court of appeals observed, as a threshold matter, that

petitioner’s

claim

“submitted

one

day

before

the

trial

commenced” -- was “a challenge to the indictment itself” and

therefore “untimely” under Federal Rule of Criminal Procedure

12(b)(3), which requires such objections to be “raised by pretrial

motion.”

Pet. App. 4a-5a.

The court, however, declined to find

that petitioner had waived or forfeited the claim on the view that

the district court, by deciding the merits, had “implicitly found

good cause” to excuse the untimely filing.

Id. at 5a.

On the merits, the court of appeals observed that a “defendant

violates § 111(a)(1) by forcibly assaulting, resisting, opposing,

impeding, intimidating, or interfering with a federal officer.”

Pet. App. 6a.

The court found the “most natural way to read” the

statute to be that “subsection (a)(1) contains six distinct verbs,

and subsection (b) enhances the penalty when a defendant inflicts

bodily injury while committing one or more of those six acts.”

Id. at 8a.

The court stated that it “disagree[d] with” the Tenth

Circuit’s holding in United States v. Wolfname, 835 F.3d 1214

(2016), that assault is “‘an essential element of every § 111(a)(1)

offense.’”

Pet. App. 7a (quoting 835 F.3d at 1218).

The court

stressed that Section 111(a) “lists six verbs separated by the

disjunctive ‘or’ and adjective ‘forcibly’ modifying each of those

acts.” Ibid. “A proper reading of the text,” the court explained,

“militates against defining resist, oppose, impede, intimidate,

and interfere merely as synonyms of ‘assault.’”

Id. at 7a-8a.

The court of appeals also observed, as did the district court,

that

petitioner’s

proposed

construction

remaining five verbs superfluous.”

“would

Pet. App. 8a.

render

the

The court of

appeals emphasized that “‘each word Congress uses is there for a

reason,’” and “‘if possible, every word and every provision is to

be given effect,’” ibid. (quoting Advocate Health Care Network v.

Stapleton, 137 S. Ct. 1652, 1659 (2017), and Antonin Scalia & Bryan

A. Garner, Reading Law:

The Interpretation of Legal Texts 174

(2012)) (brackets omitted), and considered the outcome urged by

petitioner to be a “linguistic

* * *

absurdity,” id. at 10a.

ARGUMENT

Petitioner renews his claim (Pet. 14-27) that common-law

assault is a necessary element for any conviction under 18 U.S.C.

111.

The court of appeals correctly applied the statute to

petitioner’s conduct in this case, no square conflict exists on

the question presented, and any tension in the relevant decisions

is narrow and does not warrant further review.

Indeed, the

evidence in this case makes clear that petitioner’s conduct would

be criminal even under his preferred construction of the statute.

This Court has previously denied review of petitions for writs of

certiorari raising similar issues, and the same result is warranted

here.

See Briley v. United States, 575 U.S. 962 (2015) (No. 14-

866); Williams v. United States, 562 U.S. 1044 (2010) (No. 10212); Gagnon v. United States, 558 U.S. 822 (2009) (No. 08-1486).

The court of appeals correctly applied Section 111

irrespective of whether petitioner’s conduct would qualify as

common-law assault.

Section 111(a)(1) identifies six categories

of prohibited conduct, covering anyone who “forcibly assaults,

resists, opposes, impedes, intimidates, or interferes” with a

federal officer engaged in official duties.

18 U.S.C. 111(a)(1).

By using commas between the verbs and the disjunctive “or,”

Congress made clear its intention that each category of prohibited

conduct should be separate and independent of the others.

Horne v. Flores, 557 U.S. 433, 454 (2009).

See

And although all six

require the defendant to act “forcibly,” only one is “assault.”

The other five prohibited actions involve behavior that threatens

federal officers or obstructs their official activities but is not

necessarily “assault.”

As the court of appeals recognized, invariably requiring

assault would fail “to

* * *

give[] effect” to “every word” in

Section 111(a)(1). Pet. App. 8a (quoting Scalia 174). If “assault

[were] an essential element of every § 111 offense,” the “remaining

five verbs [would be] superfluous.”

Ibid. (emphasis omitted).

Contrary to petitioner’s contention (Pet. 15-19) that the six

prohibited acts in Section 111 “operate as a unit” that sets “an

elemental floor with the misdemeanor offense

* * *

of ‘simple

assault,’” each of Section 111’s three punishment tiers points

back to six categories.

Section 111(a)’s simple-assault clause

points back to “the acts in violation of this section”; both

alternatives

identified

Section

111(a)’s

felony

clause

(physical contact or felonious intent) point back to “such acts”;

and, as most relevant here, Section 111(b)’s “enhanced penalty”

provision points back to “any acts described in subsection (a).”

18 U.S.C. 111 (capitalization altered).

Petitioner’s

narrower

reading

“acts”

thus

does

not

properly account for the statute’s use of the term “acts” to refer

to all six offense-conduct verbs.

See United States v. Briley,

770 F.3d 267, 274 (4th Cir. 2014) (“Why would Congress repeatedly

refer back to the same list of threshold acts for every designated

offense,

and

yet

covertly

assign

varying

acts

crimes?”), cert. denied, 575 U.S. 962 (2015).

different

And far from

supporting his reading, petitioner’s reference (Pet. 22-23) to

Section

111’s

title

“[a]ssaulting,

resisting,

impeding

certain officers or employees” -- cuts strongly against it.

U.S.C. 111 (emphasis omitted).

The disjunctive list of three

conduct categories -- only one of which is “assault” -- reinforces

that the statute proscribes a range of conduct beyond just assault.

See Florida Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554

U.S. 33, 47 (2008) (“[S]tatutory titles and section headings ‘are

tools available for the resolution of a doubt about the meaning of

a statute.’”) (citation omitted).

Petitioner argues (Pet. 20-21) that his reading is necessary

to give the term “simple assault” in Section 111’s misdemeanor

clause “its common-law meaning.”

But even as to Section 111

offenses that do not involve subsection (b)’s enhanced penalty -as petitioner’s own offense here does -- petitioner mistakes the

role of the phrase “simple assault.”

Rather than serving as a

“lesser-included offense of each felony” described in Section 111,

Pet. 15, it acts “as a term of art,” calling on courts to read the

misdemeanor

clause

“through

the

common-law

lens

‘simple

assault’ as excluding cases involving forcible physical contact or

the intent to commit a serious felony.”

United States v. Gagnon,

553 F.3d 1021, 1027 (6th Cir.), cert. denied, 558 U.S. 822 (2009).

The term “simple assault” thus helps to distinguish misdemeanor

violations -- which lack physical contact or felonious intent -from more serious Section 111(a) violations that “involve physical

contact with the victim of that assault or the intent to commit

another felony.”

18 U.S.C. 111(a).

The legislative history discussing Section 111’s current

formulation reflects precisely that intent.

The current language

was intended to ratify the “explanation of what this language

means” in “the 10th Circuit’s decision in” United States v.

Hathaway, 318 F.3d 1001, 1008-1009 (10th Cir. 2003).

Rec. 34,620 (2007) (statement of Sen. Kyl).

153 Cong.

And Hathaway had

explained that “the definition of ‘simple assault’ is assault which

does not involve actual physical contact, a deadly or dangerous

weapon, bodily injury, or the intent to commit murder or any felony

other than” certain sexual-abuse felonies.

Petitioner’s

position

further

318 F.3d at 1008.

undermined

his

own

separate invocation (Pet. 21-22) of the related-statute canon and

contention that Section 111 should be interpreted alongside 18

U.S.C. 113 -- a provision that punishes “[a]ssault” “within the

special

maritime

and

territorial

jurisdiction

the

United

States.” See Erlenbaugh v. United States, 409 U.S. 239, 243 (1972)

(courts should interpret statutes that “pertain to the same subject

* * *

as if they were one law”) (citation and internal quotation

marks

omitted).

Section

111

identifies

six

categories

prohibited conduct (“forcibly assaults, resists, opposes, impedes,

intimidates, or interferes”), whereas Section 113 identifies one

category (“assault”).

18 U.S.C. 111 and 113.

That contrast

strengthens, rather than weakens, the textual indications that

Congress intended to proscribe a broader range of conduct in

Section 111. See Russello v. United States, 464 U.S. 16, 23 (1983)

(“[I]t is generally presumed that Congress act[ed] intentionally

and purposely in

* * *

disparate inclusion or exclusion.”)

(citation omitted).

Contrary to petitioner’s claim (Pet. 23-24), the history

and design of Section 111 confirm its application to non-assaultive

conduct. The statute’s predecessor made it an offense to “forcibly

resist,

oppose,

impede,

intimidate,

interfere

with

any”

designated federal official “while engaged in the performance of

his

official

duties,

[to]

assault

performance of his official duties.”

him

account

the

Act of May 18, 1934, ch.

299, § 2, 48 Stat. 781 (18 U.S.C. 254 (1940)).

That provision,

which contained the same six offense-conduct verbs as the current

version, was designed to “insur[e] the integrity of law enforcement

pursuits.”

United States v. Feola, 420 U.S. 671, 682 (1975).

this Court recognized, the provision clearly “outlawed more than

assaults.”

Id. at 682 n.17; see Ladner v. United States, 358 U.S.

169, 176 (1958) (explaining that the prior statute “ma[de] it

unlawful not only to assault federal officers engaged on official

duty but also forcibly to resist, oppose, impede, intimidate or

interfere with such officers,” noting that “[c]learly one may

resist, oppose, or impede the officers or interfere with the

performance of their duties without placing them in personal

danger”).

In Ladner v. United States, for example, the Court

stated that “the locking of the door of a building to prevent the

entry of officers intending to arrest a person within would be an

act of hindrance denounced by the statute.”

358 U.S. at 176.

The

Court noted that in 1948, Congress reordered the statute by placing

the word “assaults” in front of the five other verbs.

Act of June

25, 1948, ch. 645, 62 Stat. 688 (“Whoever forcibly assaults,

resists,

opposes,

impedes,

Ladner, 358 U.S. at 176 n.4.

intimidates,

n.4

properly

(discussing

continued

Reviser’s

uphold

conduct under Section 111.

see

That “change in wording,” however,

“was not intended to be a substantive one.”

176

interferes”);

Notes).

Ladner, 358 U.S. at

And

convictions

courts

for

therefore

non-assaultive

See United States v. Johnson, 462 F.2d

423, 425, 429 (3d Cir. 1972) (upholding conviction for “willfully

resisting,

opposing,

impeding

and

interfering

with

federal

officers,” despite jury’s conclusion that defendant did not commit

“assault”), cert. denied, 410 U.S. 937 (1973).

Before 1994, Section 111 had a two-tier punishment structure:

It punished a defendant who forcibly committed actions described

by any of the six verbs with up to three years of imprisonment;

but where “any such acts” involved a deadly or dangerous weapon,

the limit was ten years.

62 Stat. 688.

In 1994, Congress amended

the penalty structure of Section 111 to its current tripartite

structure by carving out less-severe forms of the offense into

their own category.

It introduced the phrase “simple assault” to

encompass misdemeanor violations, punishable by no more than a

year in prison; “all other cases” would continue to be punishable

by up to three years; and offenses involving a dangerous or deadly

weapon would remain punishable by up to ten years, as would any

act that “inflicts bodily injury.”

Violent Crime Control and Law

Enforcement Act of 1994, Pub. L. No. 103-322, § 320101(a), 108

Stat. 2108; see Federal Judiciary Protection Act of 2002, Pub. L.

No. 107-273, Div. C, Tit. I, § 11008(b), 116 Stat. 1818 (increasing

second- and third-tier penalties).

In so doing, however, Congress

gave no indication that it intended to cut back on the statute’s

substantive reach by eliminating non-assaultive conduct from the

statute’s scope.

Congress’s

subsequent

amendment

the

statute

2008

specifically limited the second tier to cases involving physical

contact or felonious intent by striking the phrase “in all other

cases” from Section 111(a) and inserting “where such acts involve

physical contact with the victim of that assault or the intent to

commit another felony.”

Court Security Improvement Act of 2007

(2007 Act), Pub. L. No. 110-177, § 208(b), 121 Stat. 2538.

doing so, it necessarily understood the language of the first-tier

misdemeanor provision to encompass non-assaultive conduct -- like

resisting arrest -- that does not involve physical contact or

felonious intent.

Otherwise, such conduct would not be covered by

the statute at all, “rip[ping] a big hole in the statutory scheme”

and “leav[ing] those officials without protection for the carrying

out of federal functions.”

Briley, 770 F.3d at 274; see United

States v. Williams, 602 F.3d 313, 317 (5th Cir.) (“The recent

change

the

statutory

language

* * *

also

supports

the

conclusion that § 111(a)(1) prohibits more than assault, simple or

otherwise.”), cert. denied, 562 U.S. 1044 (2010).

Thus, for almost a century, Congress has protected federal

officials in the performance of their duties by criminalizing six

categories of forcibly obstructive conduct.

Although over time it

has altered the punishment according to the severity of the

defendant’s behavior -- eventually settling on the current threetier punishment structure -- at no point has Congress altered the

six basic categories of forcible conduct covered by the statute.

Section 111(a) therefore continues to apply to any defendant who

forcibly “resists, opposes, impedes, intimidates, or interferes

with”

federal

officer,

constitutes assault.

whether

not

his

conduct

also

18 U.S.C. 111; see Ladner, 358 U.S. at 176

n.4.

Petitioner’s resort (Pet. 24-25) to the rule of lenity

is misplaced.

“the

rule

For nearly 50 years, this Court has explained that

of lenity only

applies

history,

purpose,

structure,

and

if,

after

there

considering

remains

text,

grievous

ambiguity or uncertainty in the statute, such that the Court must

simply guess as to what Congress intended.”

United States v.

Castleman, 572 U.S. 157, 172-173 (2014) (citation omitted); see

Shular v. United States, 140 S. Ct. 779, 789 (2020) (Kavanaugh,

J., concurring); Huddleston v. United States, 415 U.S. 814, 830831 (1974).

This case presents no such circumstance, for the

reasons explained above.

And petitioner’s related invocation

(Pet. 25-26) of constitutional vagueness principles is similarly

misplaced.

See United States v. Lanier, 520 U.S. 259, 266 (1997)

(characterizing the rule of lenity as the “junior version of

the vagueness doctrine”) (citation omitted).

The Due Process

Clause bars enforcement of a criminal statute on vagueness grounds

only

the

intelligence

statute

fair

“fails

notice

provide

what

person

prohibited,

ordinary

standardless

that

authorizes

discriminatory enforcement.”

encourages

seriously

United States v. Williams, 553 U.S.

285, 304 (2008).

Because petitioner does not challenge Section 111 on First

Amendment grounds, he cannot prevail in his vagueness challenge by

positing hypothetical situations involving a prisoner who “turns

into a limp-noodle” or “stands rigidly still” in response to a

correctional officer’s directive.

Pet. 26.

Instead, under this

Court’s precedents, petitioner can succeed only by demonstrating

that the statute failed to provide clear warning that his own

conduct was proscribed.

See Chapman v. United States, 500 U.S.

453, 467 (1991) (“First Amendment freedoms are not infringed * * *

so the vagueness claim must be evaluated as the statute is applied

to the facts of this case.”).

And even if the five verbs beyond

“assault”

plainly

did

not

themselves

establish

the

statute’s

coverage of the conduct that those verbs describe, this Court

previously observed that Section 111’s predecessor provision -which contained the same six offense-conduct verbs -- clearly

“outlawed more than assaults.”

Feola, 420 U.S. at 682 n.17; see

Ladner, 358 U.S. at 176 n.4.

Petitioner accordingly had fair

notice that the statute reached more broadly than the assault

definition he advances.

Petitioner asserts (Pet. 9) that the circuits “have

splintered over whether ‘simple assault’ is an element of each

offense in § 111.”

review.

But no circuit division warrants this Court’s

In United States v. Chapman, 528 F.3d 1215 (2008), the

Ninth Circuit considered the prior version of the statute that

treated “simple assault” as a misdemeanor and “all other cases” as

felonies. Id. at 1218 (citations omitted); see id. at 1219; United

States v. Juvenile Female, 566 F.3d 943, 946 (9th Cir. 2009)

(addressing

pre-2008

version

Section

111

and

reiterating

Chapman’s holding), cert. denied, 558 U.S. 1134 (2010); United

States

(similar).

Rivera-Alonzo,

584

F.3d

829,

833

(9th

Cir.

2009)

In deeming the provision to require the defendant to

have committed “some form of assault,” Chapman, 528 F.3d at 1221,

the court explicitly considered but rejected a distinction based

on the presence of physical contact.

“If Congress had intended to

prohibit both assaultive and non-assaultive conduct and intended

to distinguish between misdemeanors and felonies based solely on

physical contact,” the court stated, “it easily could have said

so.” Ibid. It now has. As previously discussed, in 2008, Congress

replaced the second punishment tier’s “all other cases” language

with language specifying that it applies “where such acts involve

physical contact

* * *

or the intent to commit another felony.”

2007 Act § 208(b), 121 Stat. 2538.

reasoning in Chapman.

addressed

explicitly

the

See Williams, 602 F.3d at 317 (“Congress

ambiguity

drawing

In so doing, it abrogated the

the

identified

the

misdemeanor/felony

Ninth

line

Circuit

physical

contact.”).

And since the 2008 amendments, the Ninth Circuit has

addressed Section 111(a)’s revised language only in dicta, see

Rivera-Alonzo, 584 F.3d at 833 n.2, and the question presumably

remains open in that court.

Even before the 2008 amendment, the Sixth Circuit recognized

that common-law assault is not invariably an element of a Section

111 offense.

amendment,

See Gagnon, 553 F.3d at 1024-1027.

four

other

courts

interpretation of Section 111(a).

appeals

have

Since the 2008

addressed

the

In United States v. Williams,

the Fifth Circuit recognized that “a misdemeanor conviction under

§ 111(a)(1)

does

not

require

underlying

assaultive

conduct,”

explaining that this reading “avoided rendering superfluous the

other

five

forms

§ 111(a)(1).”

conduct

[besides

602 F.3d at 317-318.

assault]

proscribed

And in United States v.

Briley, the Fourth Circuit likewise rejected the contention that

“assault is a required element” for either a misdemeanor or felony

conviction under Section 111(a)(1).

770 F.3d at 273-274 (noting

that defendant’s contrary reading “renders a slew of verbs in

§ 111(a)

largely

surplusage”

congressional intent”).

and

“wanders

too

far

from

Those decisions, like Gagnon, accord with

the decision below.

And while the Second Circuit has taken a different view of

offenses punishable under Section 111(a), that view does not

directly conflict with the court of appeals’ determination here,

which addresses an offense punishable under Section 111(b).

Only

the misdemeanor provision of Section 111(a) was at issue in United

States v. Davis, 690 F.3d 127 (2012), cert. denied, 568 U.S. 1107

(2013), in which the Second Circuit concluded that “for a defendant

to be guilty of the misdemeanor of resisting arrest under Section

111(a), he necessarily must have committed common law simple

assault.”

Id. at 135; see id. at 134.

The court’s discussion

includes dicta about Section 111(a)’s felony provision, suggesting

that assault is an element of the physical-contact variant, but it

distinguished the felonious-intent variant on the ground that “the

statute’s five non-assault acts would appear to be criminally

prohibited by the felony clause ‘where such acts involve

. . .

the intent to commit another felony.’”

That

Id. at 136-137.

reasoning would equally apply to Section 111(b) offenses involving

weapon use or bodily injury.

In any event, the Second Circuit

emphasized that it was “not called upon today to interpret” the

felony provisions of even Section 111(a), id. at 136, and it did

not discuss Section 111(b).

In United States v. Kendall, 876 F.3d 1264, 1270 (2017), cert.

denied, 138 S. Ct. 1582 (2018), the Tenth Circuit stated that

“every conviction under § 111 requires an assault,” citing United

States v. Wolfname, 835 F.3d 1214, 1218 (10th Cir. 2016), in which

the court had viewed a published circuit decision regarding the

pre-2008

statute

compel

the

conclusion

that

“assault

necessarily an element of any § 111(a)(1) conviction,” 835 F.3d at

1218, including a conviction under Section 111(a)’s felony clause,

see id. at 1219.

Kendall did not, however, have occasion to

address whether assault is a necessary element of the enhanced

offense in Section 111(b), but instead simply presumed, along with

the parties, without discussion, that Wolfname applied to a Section

111(b) offense, in the course of classifying a prior conviction

for purposes of the Sentencing Guidelines.

See ibid.; see also

Pet. C.A. Br. at 12, United States v. Kendall, No. 16-6344 (Mar.

20, 2017); Gov’t C.A. Br. at 9-11, Kendall, supra (No. 16-6344).

Although that largely unexplained aspect of the Tenth Circuit’s

decision in Kendall deviates from the court of appeals’ reasoning

here, “this Court reviews judgments, not opinions,” Chevron U.S.A.

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).

Because no square conflict exists on the question presented, this

Court’s intervention is unwarranted.

Even if the question presented warranted further review,

this case would be an unsuitable vehicle to address it because

petitioner’s actions indisputably qualify as assaultive conduct

under his proposed reading of Section 111(b). The court of appeals

did not address this contention, but the government -- as the

prevailing party below -- may support the judgment on other

grounds.

See Dandridge v. Williams, 397 U.S. 471, 475 n.6 (1970).

And its ability to do so here would, at a minimum, complicate

further review in this Court.

Petitioner refused the correctional officer’s command to move

to the front of the prison unit, shouted “loudly and angrily” at

her, and grabbed a fire extinguisher off the wall and lifted it to

chest height.

pepper-spray

Pet. App. 21a.

canister,

and

The officer then discharged her

petitioner

extinguisher “[a]t about the same time.”

discharged

Ibid.

the

fire

As the government

explained below, see Gov’t C.A. Br. 33-36, that conduct constitutes

“simple assault” even under his proposed framework because he

“threatened to inflict injury on [the correctional officer].” Pet.

27.

The district court -- as the factfinder at trial -- declined

credit

petitioner’s

testimony

extinguisher as a shield.

that

Pet. App. 22a-23a.

grabbed

the

fire

Instead, the court

found that petitioner “held the fire extinguisher at chest height

intimidate

[the

officer],

warnings not to spray him.

Id. at 23a.

yelled”

obscenity-laden

And the court further

found that petitioner did “[e]ach of these acts

* * *

forcibly”

-- that is, “‘to inspire fear of pain, bodily harm, or death.’”

Id. at 25a (citation omitted).

Because these findings necessarily

establish that petitioner threatened to inflict injury upon the

officer, they show that he committed a simple assault.

See Davis,

690 F.3d at 135 (defining simple assault as, inter alia, “a threat

to inflict injury upon the person of another which, when coupled

with an apparent present ability, causes a reasonable apprehension

of immediate bodily harm”) (citation omitted).

Indeed, petitioner’s counsel acknowledged at trial that these

findings would satisfy the elements of common-law assault.

Ct.

Doc.

56,

221-222

(July

2019)

See D.

(“agree[ing]”

that

“[p]icking up the fire extinguisher and holding it up, if it was

done for the purpose of intimidating [the officer],

constitute an assault”).

* * *

would

Petitioner focuses on (Pet. 27) the

district court’s conclusion that the evidence failed to show that

he “intended to spray [the officer] with the fire extinguisher;”

the court instead found that petitioner “intentionally discharged

the fire extinguisher in response to being pepper sprayed.”

App. 23a.

Pet.

That conclusion does not negate the court’s threshold

finding that petitioner’s initial actions -- grabbing the fire

extinguisher off the wall and lifting it to his chest as he yelled

-- were done to “intimidate” the officer.

Ibid.

Therefore, even

if petitioner did not intend to target the officer when discharging

the fire extinguisher, his forcible intimidation of the officer

qualifies as simple assault and subjected him to prosecution under

his proposed reading of Section 111.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

DAVID M. LIEBERMAN

Attorney

APRIL 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.