U.S. v. Ramirez

• Decision Date: 09 November 2000
• Docket Number: No. 99-50922,99-50922
• Citation: 233 F.3d 318
• Parties: (5th Cir. 2000) United States of America, Plaintiff-Appellee, v. Moses Ramirez, Defendants-Appellant,
• Court: U.S. Court of Appeals — Fifth Circuit

Page 318

233 F.3d 318 (5th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Moses Ramirez, Defendants-Appellant,

No. 99-50922

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

November 9, 2000

[Copyrighted Material Omitted] Appeal from the United States District Court for the Western District of Texas

Before GOODWIN^*, GARWOOD, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Moses Ramirez appeals his conviction for forcibly assaulting a federal officer in violation of 18 U.S.C. § 111. Ramirez was convicted after a jury trial and was sentenced to thirty-six months of imprisonment, to be followed by one year of supervised release. Ramirez now challenges his convictions, claiming that the evidence is insufficient to sustain his conviction and that his indictment was constitutionally inadequate. We affirm Ramirez's conviction.

The facts of this case are straightforward, albeit unpleasant. On January 12, 1998, Ramirez was an inmate in the special housing unit of the Federal Correctional Institution (FCI) located in Bastrop, Texas. Senior Corrections Officer Stephen Griffin was retrieving the inmates breakfast trays through a small "trap door" in each cell's door. When Officer Griffin attempted to collect Ramirez's tray, Ramirez hurled a cup filled with a urine-feces mixture at Griffin, striking Griffin's chest and lower body regions. As Griffin attempted to close the trap door, Ramirez hurled a second cup of the urine-feces mixture at him, this time striking all over Griffin's body, from the neck down. As applicant hurled the second cup of the substance at Griffin he hurled a crude verbal insult. Ramirez's comment was an apparent reference to an incident report filed by Officer Griffin the previous day, describing an altercation that Ramirez had initiated with guards.

Following the urine-feces hurling incident, Officer Griffin was examined by medical professionals, who determined that he had not been injured. This examination also revealed that Griffin did not have any open lesions that had been exposed to the substance, and that none of his sensitive mucous membranes had been hit.

Ramirez now appeals his conviction stemming from this disgusting incident, arguing that the evidence presented was insufficient to support his conviction for forcibly assaulting a federal officer. This court reviews the sufficiency of evidence to determine whether any reasonable jury could have found that the evidence established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); U.S. v. Martinez, 975 F.2d 159, 160-61 (5th Cir. 1992). In performing this "reasonableness of the jury" analysis, this court views all evidence in the light most favorable to the Government. U.S. v. Shabazz, 993 F.2d 431, 441 (5th Cir. 1993); U.S. v. Alonzo, 681 F.2d 997, 1000 (5th Cir. 1982). All reasonable inferences are construed in accordance with the jury's verdict, and the jury is solely responsible for determining the weight and credibility of the evidence. Martinez, 975 F.2d at 161.

The statute governing this case is 18 U.S.C. § 111, which, in relevant part, punishes anyone who "forcibly assaults, resists, opposes, impedes, intimidates, or interferes with [a federal officer] while engaged in or on account of the performance of official duties." The statute goes on to set three different levels of punishment, depending on the nature and severity of the assault. The statute dictates that a violator

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.

The statute then announces an "enhanced penalty" of up to ten years imprisonment for assaults wherein the violator "uses a deadly or dangerous weapon . . . or inflicts bodily injury." 18 U.S.C. § 111(2)(b).

While the language of the statute seems to suggest that there are three different punishments for one crime, this circuit has interpreted 18 U.S.C. § 111 to create three separate offenses: "(1) simple assault; (2) more serious assaults but not involving a dangerous weapon; and (3) assault with a dangerous weapon." United States v. Nunez, 180 F.3d 227, 233 (5th Cir. 1999). The parsing of 18 U.S.C. 111 into three separate offense was guided by and consistent with the Supreme Court's recent decision in Jones v. United State, 526 U.S. 227 (1999).¹

While Nunez properly understood 18 U.S.C. 111 as creating three separate offenses rather than a single offense with three punishments, the precise contours of these three independent offenses are not well defined by either the statute or by Nunez. Nor have subsequent decisions in this circuit clarified the differences between "simple assault," "more serious assaults not involving a dangerous weapon," and "assaults with a dangerous weapon." See Nunez, 180 F.3d at 233. However, a sister circuit, the Second, has offered definitions of the three forms of assault under 18 U.S.C. § 111

[F]or practical purposes § 111 creates three distinct categories of conduct: simple assault, which, in accord with the common law (1) definition, does not involve touching; (2) "all other cases," meaning assault that does involve contact but does not result in bodily injury or involve a weapon; and (3) assaults resulting in bodily injury or involving a weapon.

United States v. Chestaro, 197 F.3d 600, 606 (2nd Cir. 1999). We find this to be a reasonable construction of the statute.

First, while 18 U.S.C. § 111 uses the term "simple assault," this phrase is not defined anywhere in the federal criminal code, nor in the decisions of this circuit. Nonetheless, a judicial interpretation of Congress's use of the phrase "simple assault" is available in the context the statute proscribing assaults within the special maritime and territorial jurisdiction of the United States, 18 U.S.C. § 113. As used in this frequently interpreted statute, "simple assault" has been held to "embrace the common law meaning of the term." United States v. Stewart, 568 F.2d 501, 504 (6th Cir. 1978). See United State v. Estrada-Fernandez, 150 F.3d 491, 494 n.1 (5th Cir. 1998). It is a well established principle of statutory construction that Congress intends to adopt the common-law meaning of statutory terms, absent contrary indications. United States v. Shabani, 513 U.S. 10, 13 (1994). Because Congress was silent as to the meaning of "simple assault" when it amended 18 U.S.C. § 111 in 1994 to contain the term, the canons of statutory interpretation demand that we assign "simple assault" its common law meaning. At common law, "simple assault" was, of course, an "attempted battery" or the "placing of another in reasonable apprehension of a battery." See LaFave & Scott, Substantive Criminal Law § 7.16 (1986). Thus at common law "simple assault" did not involve any physical contact.

With "simple assault" having its common law meaning under 18 U.S.C. 111, "all other cases" refers to those assaults contemplated by the statute which do involve physical contact, but do not involve a deadly weapon or bodily injury. Thus, the statutory meaning of "all other cases" is arrived at by a simple process of elimination. Any physical contact which by which a person "forcibly assaults, resists, impedes, intimidates, or interferes with" a federal officer in the performance of his duties but which does not involve a deadly weapon or bodily injury, falls into the "all other cases" category under 18 U.S.C. § 111 and is punishable by up to three years imprisonment.

Given this definition of "all other cases" under 18 U.S.C. § 111, Ramirez's argument that the evidence against him is insufficient to sustain his conviction because the Government did not present evidence of bodily harm and/or the creation of apprehension of imminent harm does not contradict his conviction under this intermediate form of assault. Neither bodily harm nor the creation of apprehension is a requirement for an "all other cases" assault under 18 U.S.C. 111. By hurling the urine-feces mixture onto Officer Griffin, Ramirez committed an assault which involved physical contact, but not a deadly weapon or bodily harm. Ramirez's vile attack on Officer Griffin is thus the very sort of physical but non-injurious assault contemplated by the "all other cases" provision of the statute.

There are ample precedents, from this circuit and others, holding that actions such as Ramirez's constitute assault on a federal officer in violation of 18 U.S.C. § 111. See, e.g. United States v. Fernandez, 837 F.2d 1031, 1035 (11th Cir. 1988) (bumping assistant United States Attorney while repeatedly advising the attorney to "watch his back" constitutes assault on a federal officer); United States v. Frizzi, 491 U.S. 1231, 1232 (1st Cir. 1974) (spitting in the face of a mail carrier sufficient for assault on a federal officer); United States v. Sommerstedt, 752 F.2d 1494 (9th Cir. 1985)(holding that the use of any force whatsoever can be an assault on a federal officer); United States v. Hightower, 512 F.2d 60, 61 (5th Cir. 1975)(grabbing a federal wildlife agent's jacket was assault on a federal officer); United States v. Hernandez, 921 F.2d 1569, 1576 (11th Cir. 1991)(poking IRS agent in the chest in a threatening manner is assault on a federal officer). Consistent with these precedents and viewed in the light most favorable to the Government,...