United States v. Jeree E. Grey

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 12, 2013
• Docket: 13-12333
• Status: Unpublished

Opinion

Case: 13-12333 Date Filed: 03/12/2014 Page: 1 of 13

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 13-12333 Non-Argument Calendar ________________________

D.C. Docket No. 1:12-cr-00245-TWT-GGB-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEREE E. GREY,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(March 12, 2014)

Before HULL, MARCUS, and EDMONDSON, Circuit Judges.

PER CURIAM: Case: 13-12333 Date Filed: 03/12/2014 Page: 2 of 13

Jeree Grey appeals his conviction and sentence after a jury convicted him of

forcible assault of a federal officer, in violation of 18 U.S.C. § 111(a)(1). Grey

committed the offense while serving a 66-month sentence for a 2008 conviction in

the Southern District of Florida for conspiring to distribute five kilograms or more

of cocaine. In this case, the evidence at trial showed that in 2012, as inmates were

on their way to their work assignments, Grey aggressively moved out of line

toward the prison warden. Grey repeatedly punched the warden, causing the

warden to fall to the ground, where Grey continued to strike the warden until

prison guards restrained him.

Grey’s theory at trial was that he did not intend to inflict injury, as he only

planned to do something outrageous that would get him placed in special housing;

and he thought the other prison guards would stop him before he made contact

with the warden. The government requested a jury charge on forcible assault

consistent with the Eleventh Circuit Pattern Jury Instructions, Offense Instruction

1.1. The government also requested that the following language supplement the

pattern instruction, “[t]he law further provides that simple assault, which means a

willful attempt to inflict some injury, coupled with physical contact is sufficient to

constitute ‘forcible assault.’” Grey objected that the supplemental language

improperly fused together the forcible-assault and physical-contact elements of the

statute. The district court ultimately charged the jury that:

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The Defendant can be found guilty of this crime only if all of the following facts are proved beyond a reasonable doubt: One, the Defendant forcibly assaulted the person described in the indictment; and, two, the person assaulted was a federal officer or employee performing an official duty.

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 regardless of whether the act is carried out or the person injured. The law further provides that a willful attempt to inflict some injury coupled with physical contact is sufficient to constitute a forcible assault. Since minimal contact is sufficient to violate Section 111(a)(1), the physical contact need not have resulted in actual bodily injury.

The jury found Grey guilty, and the district court sentenced him to 87

months’ imprisonment to run consecutively to his prior federal sentence.

The appeal presents two issues:

1. Whether the district court misstated the law in its jury instruction on forcible assault.

2. Whether collateral estoppel barred the district court from assigning criminal history points to Grey’s prior conviction for bank fraud.

We see no reversible error.

I.

We review whether the district court misstated the law in a jury instruction

de novo. United States v. Joseph, 709 F.3d 1082, 1093 (11th Cir. 2013). We 3 Case: 13-12333 Date Filed: 03/12/2014 Page: 4 of 13

review de novo the district court’s interpretation of a statute. United States v.

Dodge, 597 F.3d 1347, 1350 (11th Cir. 2010) (en banc). “The district court has

broad discretion in formulating its charge as long as the charge accurately reflects

the law and the facts.” United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir.

2009). “When the jury instructions, taken together, accurately express the law

applicable to the case without confusing or prejudicing the jury, there is no reason

for reversal even though isolated clauses may, in fact, be confusing, technically

imperfect, or otherwise subject to criticism.” United States v. Beasley, 72 F.3d

1518, 1525 (11th Cir. 1996).

The Supreme Court has held that the omission of an element from the jury

instructions is subject to harmless error analysis. Neder v. United States, 527 U.S.

1, 15, 119 S.Ct. 1827, 1837, 144 L.Ed.2d 35 (1999). Such an error is harmless

when it appears “beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained,” namely, “where a reviewing court concludes

beyond a reasonable doubt that the omitted element was uncontested and supported

by overwhelming evidence, such that the jury verdict would have been the same

absent the error.” Id. at 15-17, 119 S.Ct. at 1837 (quotation omitted).

Statutory interpretation begins with the “the language of the statute itself.”

United States v. Aldrich, 566 F.3d 976, 978 (11th Cir. 2009). An important canon

of statutory interpretation is that courts shall presume that a statute means what it

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says and says what it means. Id. “[S]tatutes should be construed so that no clause,

sentence, or word shall be superfluous, void, or insignificant.” Id. Overlapping

statutory provisions are not necessarily wholly superfluous. Cf. Conn. Nat’l. Bank

v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992)

(describing that “[r]edundancies across statutes are not unusual events in

drafting”); see also Piazza v. Nueterra Healthcare Physical Therapy (In re Piazza),

719 F.3d 1253, 1266-67 (11th Cir. 2013) (applying Conn. Nat’l Bank to a

superfluity argument regarding two subsections of the same statute).

The current version of 18 U.S.C. § 111-- under which Grey was convicted --

uses these words:

(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 where such acts involve physical contact with the victim of that assault or the intent to commit another felony, 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 5 Case: 13-12333 Date Filed: 03/12/2014 Page: 6 of 13

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.

18 U.S.C. § 111 (emphasis added).

Section 111 of Title 18 of the United States Code establishes three levels of

forcible assault: (1) simple assault, defined as “a willful attempt to inflict injury

upon the person of another, or . . . a threat to inflict injury upon the person of

another which, when coupled with an apparent present ability, causes a reasonable

apprehension of immediate bodily harm”; (2) “all other cases” of forcible assault

that involve physical contact or the intent to commit another felony; and (3) “all

other cases” of forcible assault where the defendant uses a deadly or dangerous

weapon or inflicts bodily injury. 1 United States v. Gutierrez, No. 12-13809,

manuscript op. at 5 (11th Cir. Jan. 16, 2014) (citing Martinez, 486 F.3d 1239,

1244-45 (analyzing a prior version of 18 U.S.C. § 111)) (quotation omitted). In

United States v. Siler, we stressed that 18 U.S.C. § 111 creates three separate

crimes. 734 F.3d 1290, 1296 (11th Cir. 2013). “Each [crime] has one or more

1 The use of the “all other cases” language tracks the pre-2008 version of 18 U.S.C. § 111, which provided that a person who forcibly assaults, resists, opposes, impedes, intimidates, or interferes with a federal officer engaged in his official duties shall be fined or imprisoned not more than one year “where the acts . . . constitute only simple assault,” or fined or imprisoned not more than eight years “in all other cases.” See 18 U.S.C. § 111 (2002); see Court Security Improvement Act of 2007 (“CSIA”), Pub. L. No. 110-177, § 208(b), 121 Stat. 2534 (2008) (describing changes to § 111).

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elements of the preceding category or categories, but adds an element or elements

upon which is conditioned a steeply increased penalty. Each element has to be

charged and proven beyond a reasonable doubt in the case of a jury trial.” Id.

In Martinez, we analyzed the prior version of 18 U.S.C. § 111, which

provided for two levels of forcible assault: (1) a misdemeanor offense if the

conduct constituted simple assault, or (2) a felony offense punishable by up to

three years 2 in prison “in all other cases.” See 486 F.3d at 1244. The defendant in

Martinez was charged under § 111(a) with an offense involving physical contact.

Id. at 1246. We decided that such an offense fell within the “all other cases” of

forcible assault rather than the simple assault category. Id. In doing so, we

specifically rejected the defendant’s argument that the second category of forcible

assault always required a threat to inflict serious bodily injury; and we noted that

an assault with physical contact was sufficient to constitute forcible assault under

the statute. Id. So, we upheld the district court’s jury instruction, which had

provided that a forcible assault is “an assault which results in physical contact

which does not involve a deadly weapon or bodily harm.” Id.

We recently applied Martinez in addressing the sufficiency of jury

instructions given in a trial where the defendant was charged with forcibly

2 In 2002, an amendment increased the maximum punishment from three years to eight years. Siler, 734 F.3d at 1294 n. 3. The version of the statute analyzed in Martinez involved the three-year penalty. Martinez, 486 F.3d at 1244- 45. 7 Case: 13-12333 Date Filed: 03/12/2014 Page: 8 of 13

assaulting a federal officer under the current version of 18 U.S.C. § 111(a) and (b).

See Gutierrez, manuscript op. at 4-5, 11-16. In Gutierrez, the defendant

challenged the district court’s failure to instruct the jury on the lesser-included

offense of simple assault and its failure to define forcible assault for the jury. Id. at

11-16. The Gutierrez defendant did not contest that he had made physical contact

with the federal officer. Id. at 12. We wrote that “[a]n assault is not classifiable as

a ‘simple assault’ if the assailant had physical contact with the victim.” Id. at 12.

Moreover, to find that a defendant has committed forcible assault, the jury need not

find intent to inflict serious bodily injury where physical contact has been made.

Id. at 13. We further explained that although forcible assault includes any willful

threat or attempt to inflict bodily injury with the apparent or present ability to do

so, “this is not . . . the only species of forcible assault,” as “an assault with physical

contact constitutes forcible assault.” Id. at 15 (citing Martinez, 486 F.3d at 1246).

Here, the district court did not misstate the law in its instruction on forcible

assault. The district court’s pattern charge on the general definition of forcible

assault -- which provided that 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 regardless of whether the act is

carried out or the person injured” -- was a correct statement of the law. See United

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States v. Fallen, 256 F.3d 1082, 1090 (11th Cir. 2001). Moreover, the district

court’s addition of the language from Martinez, which further defined forcible

assault as intent to inflict some injury coupled with physical contact, was an

accurate statement of the law fitting the evidence presented in Grey’s case. See

Gutierrez, manuscript op. at 15; Martinez, 486 F.3d at 1245-46. Grey’s contention

that forcible assault requires intent to inflict serious bodily harm is mistaken, as we

have expressly stated (even after the 2008 statutory revision) that the jury is not

required to find “intent to inflict serious bodily injury where physical contact has

been made.” See Gutierrez, manuscript op. at 13.

Grey’s argument that the district court’s definition of forcible assault renders

the physical contact element superfluous is incorrect: forcible assault involving

physical contact is only one way to establish forcible assault, but not the only way

under the statute. See id. at 15; Martinez, 486 F.3d at 1246. While this definition

creates an overlap between the acts listed in subsection (a) and the physical contact

element, it does not render the physical contact element wholly superfluous

because one can still be found guilty of forcible assault without physical contact.

See 18 U.S.C. § 111(a); Cf. Conn. Nat’l Bank, 503 U.S. at 253, 112 S.Ct. at 1149.

To the extent Grey argues that, in his case, the district court erred by not

instructing the jury that physical contact is a separate element that must be proved

beyond a reasonable doubt, the district court’s supposed error was harmless.

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Although the district court mentioned physical contact in its definition of forcible

assault, it only instructed the jury distinctly that, to find Grey guilty, the following

facts needed to be proven beyond a reasonable doubt: (1) Grey forcibly assaulted

the person in the indictment; and (2) the person assaulted was a federal officer

performing his official duties. This charge was arguably erroneous because the

district court never instructed the jury that it was required to find physical contact. 3

For background, see Siler, 734 F.3d at 1294-96. Still, any error was harmless,

because the evidence submitted at trial showing that Grey had made physical

contact with the warden was overwhelming and undisputed. See Neder, 527 U.S.

at 16-17, 119 S.Ct. at 1837. Moreover, Grey’s lawyer conceded during closing

argument -- and on appeal -- that Grey had punched the warden and that he had

made physical contact. Therefore, the district court’s failure to instruct on the

separate element of physical contact was harmless beyond a reasonable doubt: the

physical-contact element was uncontested and supported by overwhelming

evidence, such that the jury verdict would have been the same absent the error. See

Neder, 527 U.S. at 17, 119 S.Ct. at 1837. We affirm Grey’s conviction under 18

U.S.C. § 111(a)(1).

3 Although neither Siler nor Gutierrez expressly states that physical contact is an element that must be charged and proven, physical contact is an element that must be found beyond a reasonable doubt under Apprendi v. New Jersey, because it is a fact that raises the statutory maximum. See Apprendi, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000). 10 Case: 13-12333 Date Filed: 03/12/2014 Page: 11 of 13

II.

About issue preclusion, a district court’s ruling on whether collateral

estoppel and so on apply to an issue is a question of law that we review de novo.

United States v. Shenberg, 89 F.3d 1461, 1478 (11th Cir. 1996). The doctrine of

collateral estoppel applies to criminal proceedings through the Fifth Amendment’s

guarantee against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct.

1189, 1194-95, 25 L.Ed.2d 469 (1970). “Under the collateral estoppel doctrine,

when an issue of ultimate fact has once been determined by a valid and final

judgment, that issue cannot again be litigated between the same parties in any

future lawsuit.” United States v. Valdiviez-Garza, 669 F.3d 1199, 1201 (11th Cir.

2012) (quotation omitted) (emphasis added). To invoke collateral estoppel

successfully, the party must show: “(1) that the issue in question was actually

raised and litigated in the prior proceeding; (2) that the determination was a critical

and necessary part of the final judgment in the earlier litigation; and (3) that the

issue in the later proceeding is the same as that involved in the prior action.”

United States v. Carter, 60 F.3d 1532, 1535 (11th Cir. 1995) (emphasis in

original).

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Here, collateral estoppel did not bar the district court from assigning

criminal history points to Grey’s 2002 conviction for bank fraud. Grey argues that

collateral estoppel applies because the earlier sentencing court in his 2008

proceedings determined that his 2002 bank fraud conviction was related to his

2002 forgery conviction. The only evidence Grey submitted in support of this

argument was his 2008 presentence investigation report (“2008 PSI”): not a

judgment.

The 2008 PSI assigned one criminal history point to Grey’s 2002 forgery

conviction, zero criminal history points to Grey’s 2002 bank fraud conviction

citing U.S.S.G. § 4A1.2(a)(2), and one criminal history point to Grey’s 2002 theft

of property conviction. The 2008 PSI also indicated that Grey’s 2002 bank fraud

conviction involved stolen checks that were used to purchase motorcycles.

Furthermore, the 2002 theft of property conviction was for stealing motorcycles

and involved the victims and offense related to Grey’s 2002 bank fraud conviction.

On the other hand, the PSI prepared for the instant proceedings (“2012 PSI”)

assigned two criminal history points to Grey’s 2002 bank fraud conviction, one

criminal history point for his 2002 forgery conviction, and zero points to his 2002

theft of property conviction.

Collateral estoppel does not apply because the 2008 PSI does not show --

cannot show, by itself -- that the relatedness of Grey’s 2002 convictions for forgery

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and bank fraud was determined by a valid and final judgment. See Valdiviez-

Garza, 669 F.3d at 1201. A district court is not bound by the recommendations in

the PSI. See Fed.R.Crim.P. 32(f), (i). Thus, collateral estoppel did not prevent the

district court from assigning criminal history points to Grey’s bank fraud

conviction.

AFFIRMED.