United States v. Briley
| Decision Date | 22 October 2014 |
| Docket Number | No. 13–4831.,13–4831. |
| Citation | 770 F.3d 267 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Jay Bonanza BRILEY, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
OPINION TEXT STARTS HERE
ARGUED:Cara Viglucci Lopez, Sidley Austin LLP, Washington, D.C., for Appellant. David Sang Hak Lee, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF:Michael S. Nachmanoff, Federal Public Defender, Frances H. Pratt, Assistant Federal Public Defender, Office of the Federal Public Defender, Alexandria, Virginia; Gordon D. Todd, Sean R. Dickson, Sidley Austin LLP, Washington, D.C., for Appellant. Dana J. Boente, United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.
Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge DUNCAN and Judge KEENAN joined.
Appellant Jay Bonanza Briley was convicted after a two-day jury trial on four counts arising from intimate sexual activities in a national park and an ensuing physical altercation with United States Park Police officers. Briley now challenges the interpretation of the statute under which he was convicted, 18 U.S.C. § 111. He also contests the admission of evidence of a subsequent act under Federal Rule of Evidence 404(b). Finding no reversible error, we affirm.
In reviewing Briley's conviction, we consider the evidence in the light most favorable to the prevailing party, here the government. Evans v. United States, 504 U.S. 255, 257, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992); see United States v. Moye, 454 F.3d 390, 394 (4th Cir.2006) (en banc).
On the afternoon of January 12, 2012, Park Police officers were patrolling the Washington Sailing Marina in Alexandria, Virginia. The Marina serves as a recreational area at Daingerfield Island, a national park situated along the George Washington Memorial Parkway and the Potomac River. The Marina, which has several parking lots, is also a reputed meeting place for sexual encounters. Officers also patrol the area to prevent criminal activities such as illicit drug use, alcohol offenses, and disorderly conduct.
Two plain-clothes Park Police officers on patrol in an unmarked vehicle, William Brancato and Robert Usher, observed a man parking his car next to Briley's SUV. After the man entered Briley's vehicle, the two men reclined the front seats, and Briley placed a sunscreen across the windshield. Seeing other people approaching, Briley drove to another Marina parking lot. Inside the newly parked SUV, Briley was naked, and his companion's pants were down. From afar, the two officers saw Briley and the other man preparing to engage in sexual relations.
Brancato and Usher contacted two other Park Police officers on patrol nearby, Corey Mace and Thomas Twiname. Mace and Twiname, who were wearing tactical attire with police markings, drove to the Marina and approached Briley's SUV on foot. Briley exclaimed, “It's the cops.” J.A. 151. In response to a directive from Mace, Briley's companion opened the front passenger door, exited the SUV, and lay on the ground. Briley remained in the vehicle.
Standing on the driver's side of the vehicle, Twiname banged on the window and yelled, “Police, open the door.” J.A. 115. When Briley objected that he was naked, Twiname threatened to smash the window. Briley then opened the door, but he refused to follow Twiname's subsequent order to exit the vehicle. Twiname grabbed Briley's left arm and struggled to pull him from the vehicle. After Twiname let Briley pull his pants up, Briley locked his legs under the steering column to secure himself and began honking the horn. In an unsuccessful effort to handcuff Briley, Twiname entered the SUV and ended up behind the driver's seat. From there, he wrapped his arms around Briley's neck and upper shoulders. Mace tried to assist his fellow officer with a wristlock, to no avail. Twiname could not subdue Briley.
The two plain-clothes officers, Usher and Brancato, arrived on the scene, shouting “police” and “stop resisting.” J.A. 121, 212. After securing Briley's companion, Usher joined Brancato on the driver's side of the car. As these two officers grabbed Briley and attempted to wrest him from the vehicle, Briley tried to push Usher out of the way and struck him in the arms, side, and lower back. Usher suffered from various lower-back problems after the incident.
During the fracas on the driver's side of the car, Briley kicked Brancato in the abdomen. Brancato then tried to loosen Briley's position in the vehicle by striking him on his side. As the effort to subdue Briley continued, Briley placed another kick—this time, harder—into Brancato's abdomen. Brancato later suffered from impairment of his pancreas and lost his gallbladder.
Briley eventually agreed to exit the vehicle, but as soon as he stepped out, the struggle resumed. Briley moved his arms to keep the officers from handcuffing him and assumed an aggressive stance. Brancato sought to control Briley by attempting to grab his shoulder, but instead hit him on the side of the head. Briley then rushed toward both Brancato and Usher and pushed them backward. Even as Brancato slung his arm over Briley's shoulder, Briley managed to drag Brancato—until Twiname joined the fray along with Usher, and they all tumbled to the ground. After further tussling with Briley on the ground, the officers placed him in handcuffs. Briley finally ceased resisting. He subsequently denied punching or kicking anyone, and he said he did not know whether these individuals were in fact police officers.
A grand jury indicted Briley in the Eastern District of Virginia. In the superseding indictment, the government alleged three violations of 18 U.S.C. § 111(a) for Briley's conduct against the officers, as well as disorderly conduct. Count 1 charged Briley with the felony of forcibly assaulting, resisting, opposing, impeding, and interfering with Officer Brancato while making physical contact. Count 2 charged him with the felony of forcibly resisting, opposing, impeding, and interfering with Officer Usher while making physical contact (but omitted a specific allegation of assault). Count 3 charged him with the misdemeanor of forcibly resisting, opposing, impeding, and interfering with Officer Twiname (but omitted specific allegations of either assault or physical contact). Last, Count 4 charged him with the misdemeanor of disorderly conduct for recklessly creating a risk of causing public alarm, nuisance, jeopardy, and violence by engaging in an obscene display and act within federal land administered by the National Park Service, in violation of 36 C.F.R. § 2.34(a)(2).
During a two-day jury trial, Briley contested all the counts against him. The defense moved to dismiss Counts 2 and 3 on the ground that the government had failed to allege an “assault” in those instances,but the district court denied the motion. For Count 1, the district court instructed the jury that the government had to prove that Briley “forcibly assaulted, resisted, opposed, impeded, or interfered with” Officer Brancato. J.A. 424 (emphasis added). For Counts 2 and 3, the court told the jury that it was “not necessary to find assault”: the government had to prove only that Briley “forcibly did any one of the several alternative acts as charged” toward Officers Usher and Twiname. J.A. 426.
The district court allowed the government, under Federal Rule of Evidence 404(b), to introduce evidence of other instances in which officers had caught Briley engaging in public sexual activities within federal parklands—including conduct that occurred after the underlying January 2012 incident. The defense objected to the introduction of Briley's prior and subsequent acts, but was overruled. The court allowed this evidence as “well within the wheelhouse of permissible testimony under Rule 404(b).” J.A. 57.
Although the government initially asked to introduce the evidence of prior and subsequent acts as part of its case-in-chief, it ended up calling the apprehending officers to testify on rebuttal, after Briley's own testimony. To help satisfy the elements of the disorderly conduct charge, the government presented evidence of Briley's prior citations for masturbating in public restrooms (in the Marina area in 2000, and at another nearby federal park in 2001).
In addition, the court permitted the government to introduce evidence of Briley's conduct approximately two months after the underlying altercation. On March 20, 2012, Officer Enrique Wong had spotted Briley in the same Marina parking area engaging in sexual activities with another man in the same SUV. Wearing a police uniform and driving a marked police cruiser, Wong found Briley nearly naked, putting on his pants, with the vehicle's front seats reclined. Wong arrested Briley and the other man without resistance or further incident. At separate bench trials, both were found guilty of disorderly conduct for this activity.
The jury convicted Briley on all four counts.1 The district court sentenced him to a prison term of seventy-eight months, with the sentences for the various counts running concurrently. The court also imposed a term of three years of supervised release and ordered Briley to pay $62,306.10 in restitution. The lion's share of that sum, $54,849.91, was directed to Officer Brancato. After hearing expert medical testimony, the court concluded that the trauma from Briley's kicks had caused Brancato's pancreatitis, which in turn had compelled the removal of his gallbladder. Briley now appeals his convictions.
Briley first contends that assault is a required element of the 18 U.S.C. § 111(a) offenses alleged in Counts 1, 2, and 3. He maintains that the government failed to charge an actual violation of § 111(a) in Counts 2 and 3, and that the district court's failure to mandate a specific finding of...
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