United States v. Wolfname

Citation835 F.3d 1214
Decision Date26 August 2016
Docket NumberNo. 15-8025,15-8025
Parties United States of America, Plaintiff–Appellee, v. Jakota Allen Wolfname, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Howard A. Pincus, Assistant Federal Public Defender, (Virginia L. Grady, with him on the briefs) Office of the Federal Public Defender, Denver, Colorado, for DefendantAppellant.

Jason M. Conder, Assistant United States Attorney (Christopher A. Crofts, United States Attorney, and Kerry J. Jacobson, Assistant United States Attorney, with him on the brief), Office of the United States Attorney, Lander, Wyoming, for PlaintiffAppellee.

Before TYMKOVICH, Chief Judge, HARTZ and MORITZ, Circuit Judges.

MORITZ

, Circuit Judge.

In this case, the parties ask us to decide whether assault is an element of every conviction under 18 U.S.C. § 111(a)(1)

—a statute that prohibits forcibly resisting, opposing, impeding, intimidating, interfering with, or assaulting a federal officer engaged in the performance of his or her official duties.

As it turns out, however, an earlier panel of this court has already answered that question. See United States v. Hathaway , 318 F.3d 1001, 1007–10 (10th Cir. 2003)

(defining each of § 111's proscribed offenses based on the type of assault involved). Thus, the district court in this case erred in failing to instruct the jury that to convict Jakota Wolfname of resisting or interfering with an officer under § 111(a)(1), the jury had to find that Wolfname assaulted that officer.

But that doesn't necessarily mean we can grant Wolfname a new trial. Because he failed to challenge the elements instruction below, we may reverse only if the district court's failure to adequately instruct the jury satisfies our test for plain error. Under the facts of this case, we conclude that it does. The error was clear and obvious under Hathaway

. It affected Wolfname's substantial rights. And it seriously affected the fairness, integrity, or public reputation of Wolfname's trial. Accordingly, we reverse his conviction and remand for further proceedings.

BACKGROUND

While responding to an early-morning 911 call, Blaine Parnell—a police officer with the United States Bureau of Indian Affairs—attempted to arrest Wolfname on two outstanding tribal warrants. Parnell ordered Wolfname to put his hands behind his back. But Wolfname had other ideas: he took off running instead. Parnell gave chase and eventually caught up when Wolfname hit a barbwire fence. Both men went over the fence, and Wolfname struggled with Parnell as Parnell worked to subdue him. Parnell was eventually able to handcuff Wolfname. But not before Wolfname managed to grab Parnell's thumb and pull it towards Parnell's wrist.

As the result of his flight from Parnell and the ensuing scuffle, a grand jury indicted Wolfname for “knowingly and forcibly assault[ing], resist[ing], and interfer[ing] with” Parnell while Parnell “was engaged in the performance of his official duties, which resulted in bodily injury to ... Parnell.” See § 111(a)(1)

, (b).

At trial, Wolfname didn't dispute that he ran from Parnell. But he did testify that Parnell placed him in a chokehold once the two men ended up on the other side of the barbwire fence. As a result, Wolfname said, he was unable to breathe. And while Wolfname admitted that he grabbed Parnell's hand, he denied that he intended to injure Parnell. Instead, Wolfname explained, “I just wanted to breathe, and that's why I did that, pulled his arm from my neck.” R. vol. 3, 260.

Parnell, however, told a different story. He maintained that he put Wolfname in a headlock, not a chokehold. And he insisted that unlike a chokehold, a headlock only restricts a suspect's movement; it doesn't interfere with a suspect's breathing. Besides, Parnell testified, Wolfname didn't grab his thumb until after Parnell released him from the headlock.

At the close of evidence, the government asked the jury to convict Wolfname of “resisting, interfering [with], and assaulting” Parnell. R. vol. 3, 361. In doing so, it equated assault with being “willing to injure.” Id. at 362. The government also asked the jury to find that Wolfname made physical contact with, and inflicted bodily injury upon, Parnell.

The government got most of what it asked for. The jury found Wolfname guilty of resisting and interfering with Parnell in violation of § 111(a)(1)

. It also found that Wolfname made physical contact with Parnell. But the jury wrote, “No,” next to the assault option on the verdict form. R. vol. 2, 11. And despite testimony from Parnell and his orthopedic surgeon indicating that Parnell suffered damage to a ligament in his thumb during the struggle, the jury also declined to find that Wolfname inflicted bodily injury on Parnell.

The district court imposed a 24-month prison sentence. Wolfname appeals.

DISCUSSION

On appeal, Wolfname argues that we should reverse his conviction because the district court erred in failing to instruct the jury on assault as an element of resisting and interfering with an officer under § 111(a)(1)

. But Wolfname didn't raise this argument below. So we review only for plain error. See

United States v. Makkar , 810 F.3d 1139, 1144 (10th Cir. 2015). Under our plain-error test, we can reverse Wolfname's conviction only if (1) an error occurred; (2) the error was plain; (3) the error affected Wolfname's substantial rights; and (4) the error “seriously affected the fairness, integrity, or public reputation of a judicial proceeding.” Id.

I. The district court erred in failing to instruct the jury that assault is an element of resisting or interfering with an officer under § 111(a)(1)

.

Wolfname argues that common-law assault, i.e., an attempt or threat to injure Parnell, was an essential element of his conviction for resisting and interfering with an officer under § 111(a)(1)

. Thus, he maintains, the district court erred in failing to instruct the jury on that element. In support, Wolfname cites United States v. Hathaway , 318 F.3d 1001 (10th Cir. 2003).

In Hathaway

, the issue before us was whether § 111 sets forth separate offenses with separate elements, or whether § 111 instead contains a single offense and separate sentencing factors. See

id. at 1006 (explaining that unlike sentencing factors, “elements must be charged in the indictment, submitted to a jury, and proven by the [g]overnment beyond a reasonable doubt.” (quoting Jones v. United States , 526 U.S. 227, 232, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) )). The version of § 111(a) at issue in Hathaway provided:

(a) In general. —Whoever—
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with [certain individuals] 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 in all other cases , be fined under this title or imprisoned not more than three years, or both.
Id. at 1005

(emphasis added) (quoting § 111 (2000) ).

Citing Jones

, we easily concluded that § 111(a) proscribes two separate offenses—a misdemeanor offense and a felony offense—“each element of which must be charged in the indictment and proven to the jury beyond a reasonable doubt.” Id. at 1107. Then we moved on to the more difficult task: delineating those elements. That endeavor, we pointed out, turned primarily on the definitions of two phrases: “simple assault” and “all other cases.” Id.

First, we defined “assault,” in relevant part, as “a willful attempt to inflict injury upon the person of another, or ... a threat to inflict injury upon the person of another.” Id. at 1008

(quoting United States v. Joe , 831 F.2d 218, 220 (10th Cir. 1987) ). Next, we defined “simple assault” as assault (i.e., an attempt or threat to injure) that “does not involve actual physical contact, a deadly or dangerous weapon, bodily injury, or the intent to commit murder or any felony other than those referred to in § 113(a)(2).” Id.

Finally, with this definition of “simple assault” in hand, we defined § 111(a)

's two offenses. Critically—at least for purposes of analyzing Wolfname's argument in this casewe did so based on the type of assault involved in each. First, there's a misdemeanor § 111(a) violation. This offense requires proof of simple assault, i.e., “assault which does not involve actual physical contact, a deadly or dangerous weapon, bodily injury, or the intent to commit” certain felonies. Id. Second, there's a felony § 111(a) violation. That offense requires proof of “all other cases assault, i.e., “any assault that involves actual physical contact or the intent to commit [certain felonies] but does not involve a deadly or dangerous weapon or bodily injury.” Id. at 1008–09.1

Based on this analysis, Wolfname argues that Hathaway

made assault an essential element of every § 111(a)(1) offense. We agree. True, we didn't explicitly state in Hathaway that the government must prove assault when it alleges a defendant violated § 111(a)(1) by resisting, opposing, impeding, intimidating, or interfering with—rather than assaulting—an officer. But that holding is implicit in what we did say.

In Hathaway

, we set out to “determine the elements of the offense or offenses proscribed by § 111(a).” Id. at 1006. We then divided § 111(a) into two offenses: a misdemeanor and a felony. Finally, we defined each of those offenses based on the type of assault involved. See

id. at 1009 ([T]he only difference between a felony offense and a misdemeanor offense under § 111(a) is the nature of the assault.”). Because a § 111(a)(1) conviction for resisting, opposing, impeding, intimidating, or interfering must fall into one of these two categories, a conviction for any of these acts necessarily involves—at a minimum—simple assault. Accordingly, assault is necessarily an element of any § 111(a)(1) conviction under Hathaway.

This conclusion should come as no surprise; we're hardly the first...

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