# Opposition Brief — Williams v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2357%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2010 - **Citation:** 562 U.S. 1044 ## Text . 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 tT nave Y ment | 3a 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 Ad --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2357%3A3. Public record. Not legal advice.