U.S. v. Hathaway, No. 02-3050.

• Decision Date: 05 February 2003
• Docket Number: No. 02-3050.
• Citation: 318 F.3d 1001
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard K. HATHAWAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

318 F.3d 1001

UNITED STATES of America, Plaintiff-Appellee, v. Richard K. HATHAWAY, Defendant-Appellant.

No. 02-3050.

United States Court of Appeals, Tenth Circuit.

February 5, 2003.

COPYRIGHT MATERIAL OMITTED

Michael Lewis Harris, Assistant Federal Public Defender, Kansas City, KS, for Defendant-Appellant.

Nancy L. Caplinger, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with her on the brief), Topeka, KS, for Plaintiff-Appellee.

Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge and OBERDORFER,^* District Judge.

PAUL KELLY, Jr., Circuit Judge.

Defendant-Appellant Richard K. Hathaway was convicted by a jury of a single count of forcibly assaulting a federal officer in violation of 18 U.S.C. § 111(a). He was sentenced to two years of probation, including four months of home confinement, and was ordered to pay a $1,000 fine.

On appeal, Mr. Hathaway asserts that the indictment only charged him with a misdemeanor violation of § 111 involving simple assault. Relying on Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), he argues that since both the indictment and the jury instructions failed to distinguish between simple and non-simple assault — and thus charged only a misdemeanor violation — he could not in fact be convicted of a felony. As noted at oral argument, Mr. Hathaway does not seek to have his conviction set aside. Instead, he asks this court to order all records to reflect that he was convicted only of a misdemeanor violation of § 111. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and remand to the district court for compliance with the order contained herein that all of Mr. Hathaway's records be corrected to reflect his conviction for a misdemeanor violation of § 111(a).

Background

On June 13, 2002, Special Agent Bruce McKimens of the Social Security Administration Office of Inspector General ("SSA Agent") and Postal Inspector Jane Lutz of the United States Postal Inspection Service arrived at Mr. Hathaway's residence seeking to interview him in connection with an ongoing investigation involving his former wife. After parking in Mr. Hathaway's driveway, the agents rang the doorbell, and upon receiving no answer, the SSA Agent looked into the window next to the front door to check for signs of occupancy. Seeing none, the agents went next door to interview a neighbor.

After interviewing the neighbor, the agents noticed Mr. Hathaway's vehicle parked behind their vehicle and they spotted Mr. Hathaway between his home and the neighbor's home. The SSA Agent addressed Mr. Hathaway, who began yelling at the agents, asking why they were looking in his window. The SSA Agent identified himself as a federal agent with the Social Security Administration. When the agents did not leave after he requested that they do so, Mr. Hathaway admittedly pushed the SSA Agent in the chest and grabbed him by his tie, thereby choking him, telling him "I don't care who you are, you little twirp." III R. at 35, 199. The agents left after Mr. Hathaway complied with their request to move his vehicle. The SSA Agent suffered bruising but did not require medical attention.

Mr. Hathaway was subsequently charged in a one count indictment which read as follows:

The Grand Jury charges:

Count 1

On or about June 13, 2001, in the District of Kansas, the defendant,

RICHARD K. HATHAWAY,

did knowingly and intentionally forcibly assault, resist, oppose, impeded [sic], intimidate, and interfere with Social Security Administration Special Agent, Bruce McKimens, while he was engaged in and on account of the performance of his official duties, in violation of Title 18, United States Code, Section 111.

A TRUE BILL.

I R. Doc. 1 at 1. Immediately following this text, the indictment was signed and dated by the foreman. Id. On a separate page appended to the indictment at some unknown time, the following language appeared: "PENALTIES: Count 1: Imprisonment [not more than] 3 years; $250,000.00 Fine; [not more than] 1 year [supervised release]; Special Assessment $100.00." Id. at 3. The indictment included no factual details of Mr. Hathaway's conduct.

During the jury trial, the court instructed the jurors that the indictment charged Mr. Hathaway with a violation of § 111(a)(1), which it quoted as follows:

(a) Whoever — (1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title 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.

I R. Doc. 24 at 17. The court further instructed the jurors that for the government to sustain its burden of proof, it must prove the following essential elements beyond a reasonable doubt:

FIRST: defendant intentionally used unlawful force in assaulting, intimidating or interfering with Bruce McKimens

SECOND: defendant did so while Bruce McKimens was engaged in, or on account of his official duties

THIRD: that this act occurred on or about the 13th day of June 2001 in the District of Kansas.

Id. at 18. Finally, the court instructed the jurors on the meaning of the phrase "forcibly assaults:"

The term "forcibly assaults" means any deliberate and intentional attempt or threat to inflict physical injury upon another with force or strength when that attempt or threat is coupled with an apparent ability to do so. Although a "forcible assault" may be committed by a defendant without actually touching, striking, or doing bodily harm to another, the government must prove that the actions of the defendant, RICHARD K. HATHWAY, were of such a nature to put the person against whom they are directed in fear of immediate bodily harm. There is a use of force when one person intentionally wounds another, or when one person intentionally makes a display of force which reasonably causes a person to fear immediate bodily harm.

Id. at 20. Mr. Hathaway did not object at trial to the jury instructions and did not request a lesser included offense instruction. III R. at 225. The jury found Mr. Hathaway guilty "as charged in the Indictment." I R. Doc. 25.

The Presentence Report ("PSR") characterized Mr. Hathaway's conviction as a Class E felony in violation of § 111, with a maximum term of imprisonment of three years. IV R. at 1. Prior to sentencing, Mr. Hathaway objected to the classification of his conviction as a felony since, in his view, the indictment and the jury instructions charged only a misdemeanor violation of § 111 involving simple assault. I R. Doc. 27 at 1. In light of the Supreme Court's reasoning in Jones, Mr. Hathaway argued that § 111(a) essentially prohibits two different offenses with different required elements. Thus, conviction for non-simple assault under § 111(a) would be valid only if every element of that offense is properly charged in the indictment and then found to exist beyond a reasonable doubt by the jury. Because that did not happen here, Mr. Hathaway argued that he could only be validly sentenced for a misdemeanor violation of § 111.

Though the district court found Mr. Hathaway's arguments to be "intriguing" and "novel," it was unpersuaded, noting that Mr. Hathaway was put on notice by the indictment's reference to the applicable penalties that he was charged with a felony violation of § 111(a). II R. at 13. Accordingly, the court sentenced Mr. Hathaway on the basis of a felony conviction, imposing a sentence of two years of probation, including four months of home detention. Id. at 22, 26. Mr. Hathaway's actual sentence was below both the maximum statutory penalty of three years imprisonment for a felony conviction and the maximum statutory penalty of one year imprisonment for a misdemeanor conviction under § 111(a). On appeal, Mr. Hathaway renews his argument.

Discussion

In its entirety, Section 111 provides as follows:

(a) In general. — Whoever —

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title 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 person designated in section 1114 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 three 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 ten years, or both.

18 U.S.C. § 111 (2000) (the maximum sentences permitted under § 111(a) were increased by the Federal Judiciary Protection Act of 2002, P.L. 107-273, tit. I, § 11008(b)).

To address Mr. Hathaway's argument, we must first determine the elements of the offense or offenses proscribed by § 111(a). Specifically, we must decide if a conviction for an "all other cases" felony under § 111(a) requires an additional element, i.e., conduct constituting more than simple assault, beyond that required for a misdemeanor conviction under § 111(a). Our inquiry turns on whether the fact of the existence of non-simple assault for a felony charge is properly viewed as an element or a sentencing factor under § 111(a). "Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be...