U.S. v. Chapman

• Decision Date: 23 June 2008
• Docket Number: No. 07-50000.,07-50000.
• Citation: 528 F.3d 1215
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lee CHAPMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

528 F.3d 1215

UNITED STATES of America, Plaintiff-Appellee, v. Lee CHAPMAN, Defendant-Appellant.

No. 07-50000.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 5, 2007.

Filed June 23, 2008.

Steven L. Barth, Federal Defenders of San Diego, Inc., Sand Diego, CA, for the defendant-appellant.

Karen P. Hewitt, Bruce R. Castetter, Christina M. McCall, United States Attorneys, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; John A. Houston, District Judge, Presiding. D.C. No. CR-05-01516-JAK.

Before: DAVID R. THOMPSON and KIM McLANE WARDLAW, Circuit Judges, and EDWARD C. REED, JR.,^* District Judge.

WARDLAW, Circuit Judge:

Lee Chapman appeals his misdemeanor conviction under 18 U.S.C. § 111(a) for forcibly resisting, opposing, impeding, and interfering with a federal officer engaged in official duties. Because § 111(a) allows misdemeanor convictions only where the acts constitute simple assault, and because Chapman's nonviolent civil disobedience did not constitute a simple assault, we reverse and vacate the judgment of conviction.

I. BACKGROUND

On August 14, 2006, two contract security officers from the Department of Homeland Security at the San Ysidro Port of Entry approached Chapman to investigate complaints that he had been cutting in line at the pedestrian area leading to the border checkpoint. After a brief interaction, the three individuals began walking toward the Customs and Border Protection Inspection area.¹ As they approached the inspection area, the officers signaled to Officer Buchanan of the Federal Protective Services to stop Chapman, and he did. Officer Buchanan asked Chapman to move to the side of the walkway away from the other pedestrians, but Chapman refused. He then tried to physically escort Chapman to the side of the walkway, but Chapman "tensed up." At that point, Officer Buchanan placed Chapman under arrest and tried to pull Chapman's hand behind his back. Chapman took a rigid stance, and Officer Buchanan was not strong enough to move Chapman's arm. In the process, Officer Buchanan slipped and fell to the floor. He then stood up and told Chapman to lie down on the ground, but Chapman remained motionless and maintained his strong stance. In response, Officer Buchanan struck Chapman in the thigh with his tactical baton. Chapman, unfazed and upset at what he perceived as an unjustified attack, told Officer Buchanan to "hit [him] again." Officer Buchanan then struck Chapman a second time with the baton, to no effect. Finally, Officer Buchanan sprayed pepper spray directly into Chapman's eyes; once the spray had penetrated, Officer Buchanan and another officer moved in and placed Chapman in handcuffs. At no point in the encounter did Chapman attempt to strike, nor did he use any profanity against any officer.

Chapman was arrested and charged in a criminal complaint alleging that he "did knowingly and intentionally forcibly resist, oppose, impede, and interfere with" a federal officer in violation of 18 U.S.C. § 111(a)(1). The government filed a bill of particulars, which described the necessary elements as follows: (1) "the defendant forcibly resisted or impeded, etc."; (2) "Officer Buchanan was a federal employee engaged in official duties"; and (3) "the defendant acted wilfully and knowingly when he committed the prohibited acts." The government alleged these elements were satisfied when Chapman "refused to follow Officer Buchanan's orders," "forcibly resisted" the officer's "attempt[s] to place Chapman in handcuffs," "continued to struggle" with the officers, and, finally, "actively resisted being handcuffed ... [e]ven after being sprayed with pepper spray."

Chapman waived his right to trial by jury and testified at the bench trial, as did each of the officers involved in the encounter. The district court, relying on our decision in United States v. Sommerstedt, 752 F.2d 1494, 1496-97 (9th Cir.1985), concluded that to prove a violation of 18 U.S.C. § 111(a)(1), "the government need only show that any level of force was used against a federal officer." It held that "[t]hrough his affirmative and consistent refusal to obey Officer Buchanan's requests and commands to move to the side as well as to get to the ground, Defendant acted knowingly and willfully while resisting, interfering, opposing and impeding the action of Officer Buchanan." Finding Chapman guilty of the misdemeanor offense, the court sentenced him to time served, and denied his motion for judgment of acquittal based on insufficiency of the evidence. Chapman timely appeals.²

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 18 U.S.C. § 1291. We review de novo the denial of the motion for judgment of acquittal based on insufficiency of the evidence. United States v. Atalig, 502 F.3d 1063, 1066 (9th Cir.2007). We "must view the evidence in the light most favorable to the government and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id.

III. ANALYSIS

We agree with Chapman that, viewing the evidence in the light most favorable to the government, no rational trier of fact could find that Chapman's conduct rises to the level of a criminal offense under 18 U.S.C. § 111. Section 111 provides:

(a) In general. — Whoever—

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any [designated federal officer or employee] 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 [designated federal officer or employee] 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 in all other cases, 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.

Id.³

In Jones v. United States, 526 U.S. 227, 252, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Supreme Court held that where a statute sets out separate punishment clauses, each adding further elements to the crime, the punishment clauses constitute separate and distinct criminal offenses, rather than one offense with different punishments. Relying on Jones, several of our sister circuits have held that § 111 creates three distinct offenses, one misdemeanor and two felonies. See United States v. Hathaway, 318 F.3d 1001, 1007 (10th Cir.2003); United States v. Yates, 304 F.3d 818, 821-22 (8th Cir.2002); United States v. McCulligan, 256 F.3d 97, 102 (3d Cir.2001); United States v. Chestaro, 197 F.3d 600, 608 (2d Cir.1999); United States v. Nuñez, 180 F.3d 227, 233 (5th Cir.1999). We agree that this formulation of the statute is required by Jones. Violations of the "simple assault" provision constitute misdemeanors. 18 U.S.C. § 3559(a)(6). Violations of the "all other cases" or dangerous weapon or bodily harm provisions constitute felonies. Id. §§ 3559(a)(3), (4).

Section 111(a) is inartfully drafted, leaving two major ambiguities. First, it distinguishes between misdemeanor and felony conduct by use of the term "simple assault," which is not defined in the statute or in any other federal statute. Second, § 111(a)(1) appears to prohibit six different types of actions, only one of which is "assault," but then it draws the line between misdemeanors and felonies solely by referencing the crime of assault. Therefore, it is unclear whether the statute prohibits acts of resistance, opposition, impediment, intimidation, or interference that do not also involve an underlying assault.

Courts of appeals have focused on the first ambiguity— § 111(a)'s use of the term "simple assault" as the means to distinguish between misdemeanor and felony violations of the statute. For example, in Chestaro, the Second Circuit considered a challenge to § 111(a) on the ground that it was unconstitutionally vague because it did not clearly distinguish between misdemeanor and felony conduct. 197 F.3d at 604-05. The court acknowledged that "simple assault" was not explicitly defined, but adopted the common law understanding that "simple assault" was assault that did not involve physical contact. Id. at 605-06. Accordingly, the Second Circuit concluded that § 111(a) criminalized three distinct categories of conduct: (1) assaults that do not involve physical contact (punishable up to one year), (2) assaults that do involve physical contact (punishable up to eight years), and (3) assaults that involve a deadly or dangerous weapon or bodily injury (punishable by up to twenty years). Id. at 606; see also McCulligan, 256 F.3d at 102 (adopting the Chestaro statutory construction of § 111(a)); United States v. Ramirez, 233 F.3d 318, 321 (5th Cir.2000) (same), overruled on other grounds by United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). Therefore, under this formulation, someone who punched an arresting officer would be guilty of a felony, but someone who threw a punch and missed would be guilty of only a misdemeanor.

Other circuits have drawn different lines between misdemeanor and felony conduct. For example, the Tenth Circuit in Hathaway held that proof of actual physical contact, while sufficient, is not necessary to sustain a conviction of non-simple assault under § 111(a). 318 F.3d at 1008-09; see also Yates, 304 F.3d at 822. Rather, an assault, coupled with the presence of physical contact or a similar aggravating...