Opposition Brief — Williams v. United States

. 10-212

Jn the Supreme Court of the Cinited States

BRIEF FOR THE UNITED STATES IN OPPOSITTOR

QUESTION PRESENTED

Whether petitioner

demeanor violation of |]

|

her physical resistan

Upinior He]

Jurisdictio

statement

Argums nt

{(,onecluslol

Jn the Supreme Court of the Cinited States

tk FOR THI

pne JuUarmMNe!

March 23, 2010. A petitior

May 14, ZO10 (Pet App

writ of certiorar!

risdictio1

1254(]

tioner, petitioner struck | TT1¢ce

z= > ‘)

1.; Pet. App oa

At the direetion of Sergeant

nam attempted to assist Officer

attempted to force petitioner to the ground, petitione)

pulled away and struck him in the jaw. Gov't C.A. Br

App. 3a. Officers Putnam and Harris were

ultimately able to subdue and handcuff petitioner. Gov't

C.A. Br. 16; Pet. App. 3a. Officer Put |

id not believe petitioner

geant Eichmann testified that

trying to fight with us, but

her.” Pet. App. 3a; see Gov’

Harris escorted petitioner

1ed vrofanities at |

}

4

of forcibly assaulting, r

timidating, and interferi

‘engaged in offi

The

contact vetween pe

3a. The jury cor

The presentenc

petitioner’s

fenses

which provides a Slatulory

Imprisonment beeause the

contact with the arrestin;

According LO tne Prob: t1

petition er’s advisory,

1. The court of appeals affirmed petitioner’s convic

tions, but vacated her sentence, and remanded for

resentencing. Pet. App. la-17a.

The court initially — that it had previ-

described Section 111 as creating three separate

fenses: “(1)'simple assault; (2) more serious assaults

not involving a dangerous weapon; and (3) assault

with a dangerous weapon.” Pet. App. 7a (citation omit

ted).. The.court went on, however, to reject petitioner’s

argument that Section 111's prohibition of “resist[ing]

oppos|ing], imped{ing], intimidat{ing], or interfer[ing]

with” a federal officer, 18 U.S.C. 111 (2006 & Supp. I]

2008), “requires conduct amounting to an assault.” Pet.

App. 6a-7a (brackets in original).

The court of appeals acknowledged

f appeals had disagreed about whether every vio

the pre-2008 version of Section 1] required that a

defendant have engaged in some form of assault. Pet.

App. 8a. The Ninth Cireuit, the court noted, had held

that the earlier version of Section 11] required proof of

“some form of assault” in order to sustain a conviction.

[d. at 9a (citing United States v. Chapman, 528 F.3

e

A

1215, 1219 (9th Cir. 2008)). In contrast. the Sixth Cir

1

cuit had rejected the Ninth Circuit’s reasoning in Chap

eoneluding that the Ninth Cireuit’s reading

| a great deal of what § 111 does say entirely

meaningless” and therefore violated the canon against

construing a: statute in a way that renders words super

fluous. l/nited State: Vv. Gagnon, 553 F.31 O21, 1026

(6th Cir.) (citing Connecticut Nat'l Bank v. Germa?

».. 249, 253

4

actions 1

Seetion

Congress added

Lo the penalty provision in

. it includ

SIX proseribed

cause physica

i tlé

mind >

} aQeme. ele

neanor/fel |

PLON \

ied t]

|,

Ul]

tee Op

yt) ”

proscril portunity

ibed ah Wig

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ARGUMENT

Petitioner asks this Court to review whether a defen

dant may be convicted for a misdemeanor violation of

18 U.S.C. 111(a)(1) when the defendant is not alleged to

have engaged in any assaultive conduct. Further review

is not warranted, because the court of appeals’ decision

is interlocutory and because petitioner's claim lacks

merit. In addition, although there was a division among

the courts of appeals as to the proper interpretation of

Seetion 111 as it existed before 2008, Seetion 111 was

amended in ZOOS, and the decision below is th

court of appeals decision to construe the amended stat

ute. There is no warrant for this Court to grant review

to resolve a disagreement about a now-superseded stat

[In any ease, petitioner would not be entitled to r

‘f even under her view of Section 11]

]

1. Review by this Court of the eourt of appeals’ dec

affirming petitioner’s convictions and remandin;

resentencing is not warranted at this time. That

decision is interlocutory because petitioner has not yet

been resentenced, and that interlocutory posture “alone

furnishe[s] sufficient ground for the denial” of the peti

tion for a writ of certiorari. Hamlton-brow hoe Co

v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916); see Brot!

¢ rhood O} Locomot Ve fe? BRALLEA A Mrgin HiL€ Tt V. Hangor

& Aroostook R.R.. 389 U.S. 327. 3828 (1967): I mrgrun7ia

Military Inst. v. United States, 508 U.S. 946, 946 (1993)

(“We generally await final judgmeat in the lower courts

before exercising our certiorari jurisdiction.”’) (Sealia, J

concurring in denial of a writ of certiorari); Eugen

Gressman etal., Supreme Court Practice § 4.18, at 280

281 & n.63 (9th ed. 2007). After the district court reset

!

4

tences petitioner, petitioner will be able to ra

}

rent claim—together with any other claims that may

arise with respect to her resentencing—in a single peti-

tion for a writ of certiorari. See Major League Baseball

Players Ass'n v. Garvey, 5382 U.S. 504, 508 n.1 (2001)

(per curiam) (stating that this Court “ha[s] authority to

consider questions determined in earlier stages of the

litigation where certiorari is sought from” the most re-

cent judgment).

2. Even if the court of appeals’ decision were not

interlocutory, review would be unwarranted because the

decision is correct. Several factors support the court of

appeals’ interpretation of Section 111(a)(1) as encom

passing violations that do not involve assault. Seetion

111(a)(1) identifies six categories of prohibited conduct,

only one of which is “assault.”” The other five prohibited

actions involve types of behavior that are not necessari)

assaultive—z.e., when the defendant forcibly “resists,

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

eral officer. 18 U.S.C. 111(a)(1). The commas between

the verbs and the disjunctive “or” make clear that Con

gress intended each category of prohibited conduct to be

separate and independent of the others. See Horne v.

7 (2009). And the last five

Flores, iZy =. Ut. 2019, 209%

types of conduct need not be sub-categories of assault.

Whereas the term “assault” implies conduct that a sus

pect initiates against an officer, the other five terms en

compass actions taken by the suspect in response to con

duct initiated by the officer—actions that may or maj

not rise to the level of an assault

Petitioner’s argument (Pet. 14-15) that the court of appeals’ re

f Section 111 is inconsistent with courts’ interpretation of 18 U

L113, whiel prohibits various forms of “assault,” is incorrect As

on 113 prohibits seven torr ft econd

[In addition, one-of the statutory predecessors to Sec

tion 111 made it-an offense to “forcibly resist, oppose,

impede, intimidate, or interfere with any. [designated

official] * * * while engaged.in the performance of his

official duties, or [to] assault him on account of the per

formance of his official duties.” Act of May 18, 1934, ch.

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

Court recognized, that statute was chiefly directed at

non-assault crimes and-clearly “outlawed more than as

saults.” United. States.v. Feola, 420 U.S..671, 682 n.17

(1975); see Ladner v. United States, 358 U:s. 169, 176

(1958) (stating that former statute “makes it unlawful

not only to-assault federal officers engaged on official

duty but also forcibly to resist, oppose, impede, intim1

date or interfere with such officers. Clearly one maj

resist, oppose, or impede the officers or interfere with

the performance of their duties without placing them in

personal danger.”). As an example of non-assaultive

conduct “denounced by the statute,” this Court’s opinion

in Ladner mentioned locking a door to a house to pre

vent officers: from arresting a person inside. /b¢d. And

Congress made only a technical change when, as part of

the codification. of Title 18 in 1948, it placed the word

“assault” at the beginning of the statutory text, ahead of

the non-assault categories of prohibited conduct. /d. at

176 n.4 (discussing Reviser’s Notes to Act of June’ 25

1948, ch..645, 62 Stat. 688, which recodified provision a

1+

of which is deseribead as “simple assault and tne otnet x of which ar

described as various forms of “assault”—e.g., “Lalssault with intent to

commit murder” and “[a}ssault.with a dangerous weapon.” 18 U.S.(

113; Pet. App. 29a. Because Section 113 does not prohibit any conduct

other than assault and simple assault, it is unlike Section 111, whict

prohibits assault and five other categories of condu

Section 111, and stat

was not intended to be a substantive »” N urprl

ingly, eourts have upheld CONVICLIOI UT) r section

111(a)(1) for non-assaultive conduct. See, e.g., United

States v. Johnson, 462 F.2d 423, 425 (3d Cir. 1972) (up

holding conviction under Section ill(a) for “willfull

resisting, opposing, impeding and interfering with fed

eral officers,” despite jury’s acquittal of defendant o

charge of “assault” under that statute)

U.S. 9387 (1973

When Congre amended thi

section 111 in 1994, it introduced

assault” to encomMmpas: misdemeanor \

gress gave no indication tha

back on the substantive re:

1994, Section 111 punishe

years of imprisonment, except that offenses invol

deadly or dangerous weapon were subject to up t

years of imprisonment. In 1994, Congress amended

tion 1ll(a) by providing that the penalty f

tuting “simple assault” would be imprisonment for

T

more than one year, and that the penalty for “all o

iT

cases’ (other than those involving a deadly or dangt

weapon) would be imprisonment for up to t

Congress did not define the term “simpl

There is no indication, however, that Congre:

the 1994 amendment’s creation of a cl

violations punishable as misdemeanor

tatute’s substantive reach by eliminating

ute’s scope all non-assaultive “resist[ing], oppo

imped[ing |, intimidatling |, or interfer|ing

eral officer The eourt be .

}

‘luded (a

lll’s penalty provision applicable to “simple assault

encompasses all of the conduct ..sted in Section 111(a)

See also United States v. Vallery, 437 F.3d 626, 633 (7th

Cir. 2006) (“We hold the simple assault provi

) 111(a) apples to all violations of § 111(a), not merely

to ‘assaults.’’’): U/nited States v. Yates, 304 F.3d &18, 822

(Sth Cir. 2002) (“We hold that

the definition of simple assault ts conduct in violation

the context of 8 111.

;

> 111(a), which does not involve actual phy ical contact.

a dangerous weapon, serious bodily injury, or the intent

to commit murder or another seri I<

nied, 538 U.S. 909 (2003)

3. Noris there any ne

view in order to re

appeals. Petitioner errs in

court of appeals’ decision squarely conf

Ninth Cireuit’s holding in United State:

528 F.3d 1215 (2008), or with the decision of

court of appeals. Congress recently amended

111, and the only courts to have considered whe

‘rsion ol the statute prohibit

Petitioner ary lf Pet. 18) that Interpret f mpl wut

proof olana ault would not make {the live torms Ol non-a

ve conduct [listed in subsection (a)(1)] superfluous for all aspect

111.” She argues that “the non-assaultive conduct listed in

would inform rae * the ‘any acl ‘portion of the felony offen eC eStal

lished in § 111(b),” which penalizes as a felony the commission of at

cts described in subsection (a) if a deadly or dangerous weapor!

or bodily injury occurs. But this argument ignores the fact that tl

non-assaultive conduct listed in Seetion 111(a), if committed through tl

use of a deadly or dangerous weapon, or if it results in bodily injun

would amount to an assault. Thus, unt

lorms Ol conduct lo encompass non-a

eeded to itemize them 11 ty

{ | + | ‘

Ol Appedti Ini UN) (

trict ¢c ‘t) have agreed that it does. Pet App

l/nited State v. Perea, No. CR 09-1034 JB,

2292937 (D.N.M. May 21, 2010)

In Chapman, the Ninth Circuit construed the

version of Section 111, which punished “simpl

as misdemeanors and “all other case

In determining whether that version of the statute

rohibited conduct that did not constitute assault, the

ntified “two major ambiguities” in the statute

[the statute] distinguishe| ‘tween misde

and felony conduct by use « ‘the ‘simple

but did not define that term. 528 F.3d at 1218

to prohibit x different

but then

en misdemeanors and felonie

ng the crime of assault.” /d. at 1218

w of the Ninth Circuit, construing S

: 13

conauct would re

. ley # {

VIOIALION O

petore

sault” as the

required that tne

least some form of a

Although the Ninth Circuit

lll in Chapman did conthicet

ixth Circuit in ¢

3d 1021 (2009), the

resolve that conflict

In ZOUS,

Gagnon

ZO8(b). 121

oped with re

her in reas

cA hic

3 William BI:

apprehension of bodily hart

Be ll. 5O5 k’ Yd Io. 5 10)

U.S. 964 (1975));

RR? SOO (th

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