United States v. Gumbs, No. 18-13182

• Decision Date: 15 July 2020
• Docket Number: No. 18-13182
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shusta Traverse GUMBS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

964 F.3d 1340

UNITED STATES of America, Plaintiff-Appellee,

v.Shusta Traverse GUMBS, Defendant-Appellant.

No. 18-13182

United States Court of Appeals, Eleventh Circuit.

July 15, 2020

Richard Sterling Moultrie, Jr., Christopher Conrad Bly, Tal Cohen Chaiken, Jane Elizabeth McBath, U.S. Attorney Service - Northern District of Georgia, U.S. Attorney's Office, ATLANTA, GA, for Plaintiff-Appellee.

Kendal Silas, Stephanie A. Kearns, Federal Defender Program, Inc., ATLANTA, GA, for Defendant-Appellant.

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and LUCK, Circuit Judges.

LUCK, Circuit Judge:

Shusta Traverse Gumbs was a fugitive with an outstanding warrant for his arrest. Sitting in his car, surrounded by task force officers with the U.S. Marshals Service ready to take him into custody, Gumbs stomped on his gas pedal, struck one officer and just missed three others. But his escape was short lived. The officers caught up with Gumbs days later. He was charged with, tried for, and convicted of two counts of using a deadly weapon to forcibly assault, resist, oppose, impede, intimidate, or interfere with a federal officer. Gumbs argues that we should reverse his conviction because the district court refused to give his proposed instructions defining "forcibly" and use of a deadly weapon, failed to instruct the jury on the lesser included offense of simple assault, gave the wrong answer to the jury's question during deliberations, and erred in denying his motion for judgment of acquittal on count two. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Gumbs was a fugitive with an outstanding arrest warrant out of Douglas County, Georgia, for failing to appear in court on charges of possession of a firearm by a convicted felon and theft by receiving and possession of less than an ounce of marijuana. A seven-member task force working with the United States Marshals Service was assigned to find Gumbs and arrest him. On October 21, 2016, Officer Walker Ralston spotted Gumbs sitting inside his car in a small, fenced-in Atlanta parking lot. The lot had only one opening for entering and exiting from the street. Officer Ralston radioed the other task-force members that he saw Gumbs in the parking lot.

Officer Bryant Hill got there first. Officer Hill pulled around Gumbs's car and parked behind it so Gumbs could not back out. Officer Jeffrey Stevens, riding with Officer Ralston and Officer Christopher Baker, arrived next. Officer Stevens parked his van in front of Gumbs to block the exit, and he activated his blue lights. Officer Stevens, Officer Ralston, and Officer Baker then got out of the van and approached Gumbs with their guns drawn; the officers announced themselves as law enforcement and told Gumbs to park his car, show his hands, and surrender. Officer Hill got out of his car and joined the others. All the officers were wearing vests that said they were law enforcement.

Gumbs initially tried to back out but stopped because Officer Hill's car was in the way. Inspector Frank Lempka then arrived with Deputy David Siler. Inspector Lempka parked his car, with his blue lights activated, perpendicular to Officer Stevens's van to further block the exit. This trial exhibit shows where the cars were at that point:¹

Inspector Lempka and Deputy Siler got out of their car and went toward the driver's side of Gumbs's car, stopping a few feet behind the four other officers (Officers Stevens, Ralston, Baker, and Hill). Gumbs's window was partially down, and the officers were yelling at him that they were police and to park the car and get out. Gumbs was sitting in his car, which was running and, the officers believed, in drive.

Inspector Lempka ran back to his car to get a baton to break open Gumbs's windows. Meanwhile, Officer Ralston and Officer Stevens reached into Gumbs's car through his driver's side window. As the officers were reaching in, Gumbs slammed on the gas and the car accelerated. Right then, Inspector Lempka was running between his car and Officer Stevens's car toward Gumbs. Gumbs hit both cars as he sped off and struck Inspector Lempka. He did not even slow down as he pinned Inspector Lempka between the cars. Inspector Eric Heinze was the last to arrive and was pulling into the parking lot as Gumbs was driving away. Gumbs hit Inspector Heinze's car, and Inspector Heinze chased Gumbs as he fled. Gumbs went on to hit a civilian car before eventually abandoning his car and escaping on foot.

When Gumbs slammed on the gas: Officers Baker, Stevens, and Ralston were within a foot of Gumbs's driver's side window, close enough to reach into Gumbs's car to arrest him; Officer Hill was near them but was standing more toward the back of the car in a less vulnerable position; and Deputy Siler was about five feet from the car, further away than the others. Inspector Heinze was still in his car when Gumbs sped off.

Both of Inspector Lempka's legs were injured in the incident, and his right ankle and foot were severely sprained. Inspector Lempka also suffered injuries to his head

resulting in a black eye and a large bump on his brow.

Gumbs was arrested four days later. Soon after, Gumbs was indicted for two counts of using a deadly weapon to forcibly assault, resist, oppose, impede, intimidate, or interfere with a federal officer, in violation of 18 U.S.C. § 111(a)(1) and (b).² Count one charged Gumbs with hitting Inspector Lempka. Count two charged Gumbs with forcibly assaulting, resisting, opposing, impeding, and interfering with the six other officers who were next to the car as Gumbs was speeding away from the parking lot.

The case was tried in front of a jury over six days in December 2017. At the end of the government's case, Gumbs moved for judgment of acquittal. As to count two, Gumbs argued there was no evidence he acted in a threatening way toward the officers standing next to his car, although he admitted his argument was weaker with respect to the officers "closest" to his car. The district court denied Gumbs's motion.

In his closing argument, Gumbs admitted he hit Inspector Lempka but claimed it was an accident. Gumbs argued that the evidence suggested he had used the car to flee rather than as a deadly weapon. Gumbs acknowledged he resisted, opposed, and impeded the officers to evade arrest, but he maintained he did not do so forcibly.

At the charge conference, Gumbs requested a special jury instruction for the term "forcibly":

To act "forcibly" means to use physical force or threats of force. "Threats of force" means threats of bodily harm. To forcibly assault, resist, oppose, impede or interfere with a federal officer, the Defendant must use or attempt to use physical force against the officer or threaten in some way to do bodily harm to the officer.

Gumbs also requested a special instruction regarding the use of a deadly weapon:

A motor vehicle is a dangerous or deadly weapon if it is used in a way that is capable of causing death or serious bodily injury. For a car to qualify as a deadly or dangerous weapon, the defendant must use it as a deadly or dangerous weapon and not simply as a mode of transportation.

To show that a weapon was "used," the Government must prove that it was actively employed in some way to further or advance the forcible assault, resistance, opposition, impeding or interference with a federal officer. "Use" can occur through intentionally displaying a weapon during the course of forcibly assaulting, resisting, opposing, impeding or interfering.

Finally, Gumbs requested that the jury be instructed on the lesser included offense of simple assault under 18 U.S.C. § 111(a). The district court denied Gumbs's requested instructions except for the first sentence of his proposed use-of-a-deadly-weapon instruction. In relevant part, the court instructed the jury:

It is a federal crime to forcibly assault, resist, oppose, impede or interfere with a federal officer using a deadly or dangerous weapon or inflicting body injury while the officer is performing official duties.

In this case the defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt:

One, the defendant knowingly and willfully forcibly assaulted, resisted, opposed, impeded or interfered with the person described in the superseding indictment;

Two, the person forcibly assaulted, resisted, opposed, impeded or interfered with a federal officer performing an official duty; and,

Three, the defendant used a deadly or dangerous weapon or inflicted bodily injury.

A forcible assault is an intentional threat or attempt to cause serious bodily injury when the ability to do so is apparent and immediate. It includes any intentional display of force that would cause a reasonable person to expect immediate and serious bodily harm or death.

....

A dangerous or deadly weapon means any object that can cause death or present a danger of serious bodily injury.

A weapon intended to cause death or present a danger of serious bodily injury, but that fails to do so by reason of a defective component, still qualifies as a deadly or dangerous weapon.

A motor vehicle is a deadly or dangerous weapon if it is used in a way that is capable of causing death or serious bodily injury.

Though a forcible assault requires an intentional threat or attempt to inflict serious bodily injuries, the threat or attempt does not have to be carried out and the victim does not have to be injured.

....

The words knowingly and willfully as those terms are used in the superceding [sic] indictment mean that the act was committed voluntarily and not because of mistake or by accident.

During deliberations, the jury asked the district court whether a car is "still a deadly weapon if you don't intend to use it that way." The district court proposed to respond to the jury's question by repeating the deadly-weapon instructions it gave earlier, but Gumbs argued the court should simply answer "no." When the district court disagreed with Gumbs's response, Gumbs requested that...