U.S. v. Arrington

• Decision Date: 05 November 2002
• Docket Number: No. 01-3059.,01-3059.
• Citation: 309 F.3d 40
• Parties: UNITED STATES of America, Appellee, v. Derrek E. ARRINGTON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 40

309 F.3d 40

UNITED STATES of America, Appellee, v. Derrek E. ARRINGTON, Appellant.

No. 01-3059.

United States Court of Appeals, District of Columbia Circuit.

Argued September 9, 2002.

Decided November 5, 2002.

COPYRIGHT MATERIAL OMITTED

Appeal from the United States District Court for the District of Columbia (No. 00cr00159-01).

Neil H. Jaffee, Assistant Federal Public Defender, argued the cause for appellant. With him on the briefs was A.J. Kramer, Federal Public Defender. Shawn Moore, Assistant Federal Public Defender, entered an appearance.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and John R. Fisher, Thomas J. Tourish, Jr., and Oliver W. McDaniel, Assistant U.S. Attorneys.

Before: TATEL and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Defendant Derrek Arrington appeals from his conviction for using a dangerous weapon — to wit, an automobile — to forcibly assault, resist, oppose, impede, intimidate, or interfere with three United States Park Police officers, in violation of 18 U.S.C. § 111(a) and (b). We reject Arrington's contention that the district court plainly erred in instructing the jury, as well as his contention that the evidence presented at trial was insufficient to sustain his conviction.

I

On May 10, 2000, Arrington was indicted on four counts of violating federal law. Count 1 charged him with using a dangerous weapon to forcibly assault, resist, oppose, impede, intimidate, or interfere with three federal officers engaged in the performance of their duties, in violation of 18 U.S.C. § 111(a) and (b). Count 2 charged him with attempting to murder a federal officer, in violation of 18 U.S.C. § 1114. Count 3 accused Arrington of discharging a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). And Count 4 charged him with unlawfully possessing a firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2).

According to the government's evidence at trial, the case began on April 13, 2000, when United States Park Police officers Jonathan Daniels, Martin Yates, and Troy Eliason stopped Arrington's car because it lacked a front license plate. As Arrington produced his license and registration, Daniels observed a small ziplock bag with a residue of white powder on the floorboard. Upon Daniels' signal, the three officers retreated to the rear of the car, where Daniels informed them of the suspected drug paraphernalia and of his intention to ask Arrington and his (unidentified) passenger to get out of the car.

The officers then returned to the front of the automobile and asked Arrington to step outside. When Arrington instead reached for the gear shift, Daniels and Eliason reached through the open driverside door and grabbed him around the upper body, while Yates leaned in from the passenger's side to turn off the ignition. With all three officers still reaching inside the car, and two of them holding onto his body, the defendant shifted into drive and "floored it." 9/14/00 p.m. Tr. at 36. Although Yates was caught by the frame of the car door, he soon extricated himself, as did Eliason. Daniels, however, was dragged by Arrington's car for at least 50 feet, through an intersection, before he was able to free himself and fall to the ground.

All three Park Police officers then returned to their cars and pursued Arrington in what became a high speed chase. Arrington eventually lost control of his car and crashed into a curb, whereupon he fled on foot with the officers in pursuit.¹ Daniels and an off-duty Metropolitan Police Department officer who had joined the chase finally caught up with Arrington. Yates and the off-duty officer testified that, during the ensuing struggle, Arrington shot Daniels in the face with a handgun. Yates and the other officer eventually subdued Arrington and arrested him.

Arrington testified at trial in his own defense, and the story he told of his flight from the traffic stop diverged significantly from that of the officers. Arrington testified that he decided to drive off because he felt threatened by the police. According to the defendant, he never had physical contact with any of the officers, and no officer had any part of his body in the car at the time Arrington drove off. After leading the officers on the car chase, Arrington jumped out of his car and began to run. According to Arrington, two officers caught up with him and wrestled him to the ground. During the struggle, a gun Arrington was carrying in his pocket accidentally discharged, and the bullet hit Officer Daniels.

The jury convicted Arrington on Counts 1 and 4, but deadlocked on Counts 2 and 3 — the attempted murder and discharging-a-firearm counts. The latter two counts were retried twice (along with a new, additional count), each trial ending in deadlock. After the third trial, the government dismissed the outstanding counts and the district court sentenced the defendant to 240 months' imprisonment on Counts 1 and 4. Arrington's only challenge here is to his conviction, on Count 1, for violating 18 U.S.C. § 111(a) and (b).

II

Subsection 111(a) provides, in relevant part, that anyone who "forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any [designated federal officer²] while engaged in or on account of the performance of official duties," shall be imprisoned for a maximum of three years. 18 U.S.C. § 111(a).³ Subsection 111(b) increases the maximum penalty to ten years for anyone who (so far as is relevant here), "in the commission of any acts described in [§ 111(a)], uses a deadly or dangerous weapon...." 18 U.S.C. § 111(b).⁴

Arrington raises two objections to his conviction for violating § 111(a) and (b): first, that the district court gave erroneous jury instructions regarding the elements of both the (a) and (b) offenses, and second, that the evidence presented at trial was insufficient to support his conviction for the (b) offense. In order to evaluate these claims, we first set forth the elements of § 111(a) and (b),⁵ a determination we make de novo. We then consider, in Parts III and IV, whether the jury was properly charged and whether the evidence was sufficient to support Arrington's conviction.

We begin with § 111(a). As the words of that subsection make clear, to violate its proscription a defendant must: (1) forcibly; (2) assault, resist, oppose, impede, intimidate, or interfere with; (3) a designated federal officer⁶; (4) while engaged in or on account of the performance of official duties. In addition, the defendant must have: (5) the "intent to do the acts" specified in the subsection. United States v. Kleinbart, 27 F.3d 586, 592 (D.C.Cir.1994) (quoting United States v. Feola, 420 U.S. 671, 686, 95 S.Ct. 1255, 1264-65, 43 L.Ed.2d 541 (1975)). Finally, as we indicated in United States v. Heid, 904 F.2d 69, 71 (D.C.Cir.1990), the adverb "forcibly" in the first element of the offense modifies each of the prohibited acts specified in the second element: that is, a defendant does not violate the statute unless he forcibly assaults or forcibly resists or forcibly opposes, etc. As the parties agreed at oral argument, so far all of this is common ground between them.

We turn next to the elements of § 111(b), and here, too, find some common ground. Again, the statutory language makes clear that, to qualify under this subsection, the defendant must: (1) use a deadly or dangerous weapon⁷; (2) in the commission of any of the acts described in the prior subsection. In addition, although the language merely states that the defendant must "use[]" the weapon, the government agrees — as do we — that: (3) the defendant must use the weapon intentionally. See Appellee's Br. at 26. As the Supreme Court stated in United States v. Feola, "in order to incur criminal liability under § 111 an actor must entertain ... the criminal intent to do the acts therein specified," 420 U.S. at 686, 95 S.Ct. at 1264-65, and the act specified in § 111(b) is the use of a deadly weapon. Accordingly, intent to use the weapon is a necessary element, and a defendant who does so purely by accident does not come within the scope of § 111(b).

We now reach the point of the parties' dispute. The foregoing is sensible enough, Arrington says, when the weapon at issue is one that is inherently deadly, like a gun. But what if the weapon is one that is deadly only if used in a certain manner, like Arrington's car? To this query, the government responds that a distinction between the two kinds of weapons is indeed appropriate. For an object that is not inherently deadly, the government concedes that the following additional element is required: (4) the object must be capable of causing serious bodily injury or death to another person and the defendant must use it in that manner. Appellee's Br. at 19; see United States v. Murphy, 35 F.3d 143, 147 (4th Cir.1994); 1 LEONARD B. SAND ET AL., MODERN FEDERAL JURY INSTRUCTIONS (CRIMINAL) ¶ 14.01, at 14-25 (2002); 2 KEVIN F. O'MALLEY ET AL., FEDERAL JURY PRACTICE & INSTRUCTIONS (CRIMINAL) § 24.06, at 68, 71 (5th ed.2000). That is, for a car to qualify as a deadly weapon, the defendant must use it as a deadly weapon and not simply as a mode of transportation.

Arrington, however, asks us to add a fifth requirement. It is not enough, he argues, that a defendant intend to use the object; nor is it enough that he actually use the object in a deadly manner. In addition, Arrington contends, the defendant must intentionally use the object as a weapon.

We must state at the outset that, in light of the other elements of the (b) offense, we see little practical difference between the positions of the parties. When asked at oral argument to posit a set of circumstances in which adding Arrington's fifth element would...