[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ELEVENTH CIRCUIT JULY 09, 2001 No. 99-11329 THOMAS K. KAHN CLERK
D.C. Docket No. 98-00373-CR-J-21C
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS E. FALLEN,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida
(July 9, 2001)
Before TJOFLAT and HULL, Circuit Judges, and PROPST*, District Judge.
_______________________________________________ * Honorable Robert B. Propst, U.S. District Judge for the Northern District of Alabama, sitting by designation. TJOFLAT, Circuit Judge: This is a direct appeal from a conviction for forcibly assaulting two federal
officers in violation of 18 U.S.C. § 111(a)(1) (1994).1 The defendant, Thomas
Fallen, challenges his conviction on the grounds that (1) the evidence was
insufficient to sustain a conviction under section 111(a); (2) the district court
abused its discretion in failing to give the defendant’s proposed jury instructions on
forcible and simple assault; and (3) the district court abused its discretion in
admitting into evidence his prior firearm-related convictions and testimony that
one of the federal agents had been previously fired upon three times in the line of
duty.2
I.
At 5:05 a.m. on October 4, 1998, Thomas Fallen of Jacksonville, Florida
1 18 U.S.C. § 111(a)(1) provides: 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. 2 As relief on his first ground, Fallen asks that we direct the district court to enter a judgment of acquittal. As to the remaining grounds, Fallen contends that, whether considered individually or collectively, he should be granted a new trial.
2 called the Secret Service in Washington, D.C. to report a threat against the
President. Fallen told Agent Larsen that his son, Troy, had threatened to “blow the
President’s head off with a shotgun.” Throughout the call, Fallen was stumbling
over his words and giving inconsistent statements; he also became confused when
asked for his phone number, leading Larson to believe he was probably
intoxicated. When asked, Fallen admitted that he had been drinking. Larson
mentioned this in his report, wherein he described Fallen as “very drunk” and
“confused.”
At 5:17 a.m., Larson phoned Agent Mikosky in the Jacksonville regional
Secret Service office and asked him to follow up on Fallen’s phone call. Mikosky
phoned Agent Fultz, also in the Jacksonville office, and requested that he run a
criminal history check on Fallen. When Fultz ran the check, he found three prior
gun-related incidents: a conviction for possessing a concealed weapon in 1975, an
arrest for possessing a concealed weapon in 1983, and a conviction for making a
false statement in connection with a gun purchase in 1990. With this information
in hand, Mikosky and Fultz advised local police of the situation and, at
approximately 11:00 a.m., went to Fallen’s house to investigate the reported
3 threat.3
When Mikosky and Fultz arrived at Fallen’s house, they knocked on his
front door. A male voice from inside the house, identified by the agents at trial as
Fallen’s, called out, “Who is it?” Mikosky replied that he was with the Secret
Service and was looking for Fallen. Fallen responded, in what Mikosky described
at trial as a “very loud” and “very angry” voice, that he had a gun and would shoot
the agents if they did not leave his property. The agents backed away from the
door and Agent Mikosky identified himself again, saying, “This is Agent Mikosky
with the Secret Service, you called us.” At that point, Mikosky looked at the
window to the right of the door and noticed someone pulling back the curtain.
Although he could not see who was there, Mikosky pointed to his badge and said,
“Mr. Fallen, we’re the Secret Service, you called us.” Just before he finished his
sentence, however, Fallen repeated that he had a gun and would shoot and kill the
agents if they did not leave his property.
In the face of Fallen’s repeated threats, the agents went back to their car and
drove out of the immediate area.4 They then went to a neighbor’s house and
3 Mikosky testified at trial that he waited nearly six hours to contact Fallen because he was aware that Fallen appeared to have been heavily intoxicated at 5:05 a.m.; Mikosky was hoping that Fallen would “sober up” by the time the agents arrived. 4 Fearful that he would indeed be fired upon, Agent Mikosky drew his sidearm but kept it concealed while he carefully retreated to the car. Agent Fultz had his hand on his sidearm,
4 telephoned Fallen, explaining that they just wanted to talk to him about the
complaint he had made. Fallen told Mikosky that he would not come out of the
house because he believed the agents would arrest him. When the agents told him
that they did not intend to arrest him, Fallen agreed to talk to the agents through the
solid front door. Mikosky told him that arrangement was unacceptable, however,
because the agents feared that Fallen might shoot them if they reentered his
property. Although Fallen replied, “I won’t have a gun,” Mikosky suggested that
Fallen open the solid front door and stand behind the screen door so the agents
could see his hands. Fallen agreed, but had to be reminded during the ensuing
interview to keep his hands in sight.
When the agents returned to Fallen’s house, Fallen told them that his son,
who had visited him seven days ago, had become incensed when he saw a card
bearing a picture of President Clinton and the First Lady. Fallen’s son stated that
he was going to Washington, D.C. to “blow [the President’s] head off with a
shotgun.” During the interview, which lasted five minutes, Fallen did not appear to
be intoxicated; his speech was clear and articulate.
Two and one-half weeks later, on October 22, 1998, the agents returned to
Fallen’s house with a warrant and arrested him. On October 29, a Middle District
which was contained in a “fanny pack” he wore around his waist.
5 of Florida grand jury indicted Fallen on one count of assaulting a federal officer in
violation of 18 U.S.C. § 111(a)(1). Fallen’s trial began on January 6, 1999. At the
close of the Government’s case, Fallen’s attorney moved the court for a judgment
of acquittal and, after the court took the motion under advisement, rested without
calling any witnesses. The jury returned a guilty verdict on January 7. On April
27, 1999, the district court denied Fallen’s motion for a judgment of acquittal, and
sentenced Fallen, who had been detained in custody, to time served and one year
supervised release.5
II.
A.
Fallen’s first ground for reversal is that the evidence at trial was insufficient
to sustain a conviction for forcible assault under 18 U.S.C. § 111(a)(1). Questions
about the sufficiency of the evidence produced at trial are reviewed de novo.
United States v. Keller, 916 F.2d 628, 632 (11th Cir. 1990). We must view all
evidence in the light most favorable to the United States, with all reasonable
inferences drawn in its favor. Id. To uphold the district court’s denial of the
5 On July 28, 1999, Fallen violated the terms of his supervised release and was sentenced to ten months’ imprisonment. It appears that Fallen is no longer incarcerated.
6 motion for judgment of acquittal and the jury’s verdict, we need only find that a
reasonable fact finder could have concluded that the evidence established the
defendant’s guilt beyond a reasonable doubt. Id.
Forcible assault has been defined as “any willful threat or attempt to inflict
bodily injury upon the person of another when coupled with an apparent present
ability to do so, and includes any intentional display of force such as would give
the victim reason to fear or expect immediate bodily harm.” United States v.
Renfro, 620 F.2d 497, 500 (5th Cir. 1980) (emphasis added).6 Clearly, Fallen
willfully threatened to inflict bodily injury upon the agents when he stated that he
would shoot them with a gun. Under the totality of the circumstances, the agents
were reasonably afraid of being shot – they were repeatedly threatened by an
angry-sounding, possibly intoxicated felon with prior convictions involving
firearms. Moreover, the agents knew that Fallen could see them and was within
shooting range, as they could hear him behind the door and saw a hand moving the
window curtain.
Fallen contends in his brief, however, that the evidence at trial did not
establish a forcible assault because he “did not engage in any physical contact with
6 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
7 the agents.” Moreover, because he did not “display any weapons . . . [t]here was
no evidence presented that indicated Fallen had the apparent ability to harm the
agents.” (emphasis added.)
This circuit and others have held that “proof of actual physical contact is not
required to violate § 111.” United States v. Chambers, 195 F.3d 274, 277 (6th Cir.
1999); see also United States v. Hernandez, 921 F.2d 1569, 1577 (11th Cir. 1991)
(“[t]he statute may be violated . . . by minimal physical contact, or even without the
presence of any physical contact”) (internal citations omitted); United States v.
Fernandez, 837 F.2d 1031, 1035 (11th Cir. 1988) (citing United States v. Mathis,
579 F.2d 415, 418 (7th Cir. 1978), for the proposition that “evidence that [the]
accused used some quantum of force or threat of force is sufficient to support
conviction under section 111”). Fallen argues that because these cases were
decided before section 111 was amended by the Violent Crime Control Act of
1994 to add the lesser included offense of simple assault, they are no longer good
law to the extent that they allow mere threats of force to constitute a forcible
assault. Now, Fallen avers, all threats of force unaccompanied by physical contact
must be treated as simple assaults under section 111. Fallen cites no case law for
this proposition, and we find no post-1994 Eleventh Circuit decisions addressing
the issue. Other circuits have rejected Fallen’s overly broad definition of simple
8 assault, however, and have held instead that the more narrow common law
definition of simple assault applies to section 111. See United States v. Chestaro,
197 F.3d 600, 605-06 (2d Cir. 1999). We think that this is the better view.
At common law, simple assault is 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.” Id. at 605 (internal quotation
omitted); see also United States v. LeCompte, 108 F.3d 948 (8th Cir. 1998). A
forcible assault would therefore have to be something more, such as a willful
attempt or threat to inflict serious bodily injury, coupled with an apparent present
ability, which causes the intended victim a reasonable apprehension of immediate
serious bodily harm or death. Cf. Chambers, 195 F.3d at 277 (“The element of
force necessary for a [forcible assault] conviction under [section 111] may be
shown by such a threat or display of physical aggression toward the officer as to
inspire fear of pain, bodily harm, or death.”) (internal quotation and citation
omitted). Fallen certainly threatened serious bodily injury and, by his words and
actions, gave the agents reasonable cause to fear such injury or death. Thus, the
fact that Fallen never made physical contact with the agents does not lessen the
degree of the assault.
9 That Fallen did not “display” a weapon so that the agents could see it is of
no moment, as Fallen’s “present apparent ability” to harm the agents was
established by his repeated assertion that he had a gun and was willing to use it.
While we can find no case in this circuit addressing whether the victim of a
forcible assault must actually see the weapon with which he is threatened, we are
guided by the reasoning set forth in United States v. Crouthers, 669 F.2d 635 (10th
Cir. 1982). Crouthers and his confederate, Garvin Trimm, conspired to use Robert
Salski, a Wells Fargo employee, to rob an automatic bank teller facility.
Crouthers, an acquaintance of Salski’s, masterminded the robbery plan. He
supplied Trimm with a briefcase for the money and a loaded gun. He then set up a
meeting with the unwitting Salski, who had the keys to the bank facility, and
arranged for Trimm to accost them both as they left Crouthers’s apartment to go to
dinner. Crouthers’s plan was to pretend that he, too, was merely an unfortunate
victim of the robbery. Id. at 637-38.
Trimm approached Crouthers and Salski in accordance with the plan, and
Crouthers told Salski that Trimm had a gun to Crouthers’s back. Salski never saw
the gun. Trimm told Salski, “just take it easy and your friend here won’t get hurt.”
Id. at 639. In fact, unbeknownst to both Crouthers and Salski, Trimm had removed
the bullets from the gun. Id. at 638. Trimm directed Salski to drive the trio to the
10 automatic teller facility, unlock the safes, take the money (which amounted to
$13,650.00) and put it in his briefcase. Id. While en route, Salski heard Crouthers
say, “don’t shoot, don’t hurt us.” Id. at 639. After taking the money, Trimm
ordered the men back into the car. They returned to the area of Crouthers’
apartment where Trimm took his leave. Id. at 638.
After a prolonged investigation, Crouthers was charged and convicted of
armed bank robbery in violation of 18 U.S.C. §§ 2113(a), (d) and 2. Section 2113
provides, in pertinent part:
(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny– Shall be fined under this title or imprisoned not more than twenty years, or both. ... (d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both.
11 In his appeal, Crouthers contended that because Salski did not see the gun, the
evidence was insufficient to show that Salski was assaulted or his life put in
jeopardy as required for conviction under subsection (d). Id. at 637. The court, in
rejecting Crouthers’s argument, noted that “[i]t would be unreasonable to expect
the victim of a crime, such as Salski, to risk his life in order to positively ensure
that his assailant did indeed have a weapon . . . .” In light of Crouthers’s and
Trimm’s unambiguous statements about the gun in Salski’s presence, the court
held that “Salski reasonably perceived the use of a dangerous weapon.” Id. at 639.
We agree with the reasoning of Crouthers. It would indeed be unreasonable
to require federal agents in situations such as this one to risk serious injury or death
to ensure that their assailant is actually in possession of a dangerous weapon.
Rather, concealed assailants who assert that they are in possession of a loaded
firearm do so at their peril. When the totality of the circumstances supports a
reasonable inference that the assailant is armed, a law enforcement officer is
entitled to take the assailant at his word. In the case before us, Agents Mikosky
and Fultz were aware of Fallen’s prior convictions involving firearms, knew that
he may have been intoxicated, and were repeatedly told after identifying
themselves that they would be fired upon. Notably, Fallen was not shouting at the
agents from deep within the house or from his backyard – he was just on the other
12 side of the door, looking at the agents through a window. Under these
circumstances, we hold that Fallen’s ability to inflict imminent and serious bodily
harm upon the agents was “apparent” enough to constitute a forcible assault under
18 U.S.C. § 111.
Given the foregoing, a reasonable fact finder could have concluded that the
evidence established Fallen’s guilt beyond a reasonable doubt. We therefore hold
that the district court properly denied Fallen’s motion for a judgment of acquittal,
and that the jury’s verdict is supported by sufficient evidence.
B.
Fallen contends that he should be granted a new trial because the district
court abused its discretion in failing to give his proposed jury instructions on
forcible assault. To prevail on this challenge, Fallen must show that the district
court failed to give an instruction that was (1) correct; (2) not substantially covered
by other instructions that were given; and (3) “so vital that failure to give the
requested instruction seriously impaired the defendant’s ability to defend himself.”
United States v. Gonzalez, 122 F.3d 1383, 1388 (11th Cir. 1997).
The first instruction Fallen proposed contained language from the Eleventh
Circuit Pattern Instruction 1.1, pertaining to 18 U.S.C. § 111(a)(1), as well as
13 strategically selected language from United States v. Fernandez, 837 F.2d 1031
(11th Cir. 1988). The proposed instruction utilized Fernandez for the proposition
that threats of force, absent any physical contact, are insufficient to constitute a
forcible assault. As we established, infra part II.A., the proposed instruction was a
misstatement of the law. Accordingly, the district court did not abuse its discretion
by refusing to give it.
After the court refused to instruct the jury as Fallen requested, he asked that
the court give the Eleventh Circuit Pattern Instruction for forcible assault
(Instruction 1.1) in its entirety. The court declined, and instead gave a modified
instruction that differed from Instruction 1.1 only in its definition of “forcible
assault”:
Now, the term “assault” means 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. Now as stated above, this offense requires proof of forcible assault. Where there is no touching of the victim by the defendant, the force element of this offense may be satisfied only by proof that the defendant engaged in such provocative threats or displays of physical aggression toward the officer as to inspire fear of imminent pain, bodily harm or death.
The district court’s definition of forcible assault was a correct statement of the law.
We therefore hold that the court’s refusal to give Instruction 1.1 in its entirety did
not constitute an abuse of discretion.
14 C.
Assuming the failure of his challenge to the district court’s jury charge,
Fallen turns to the court’s evidentiary rulings; he submits that two of them were
erroneous and operated to deny him a fair trial. We review these rulings under the
abuse-of-discretion standard. United States v. Fortenberry, 971 F.2d 717, 721
(11th Cir. 1992).
1.
The first ruling Fallen questions concerns the agents’ testimony about his
previous offenses involving firearms. He objected to the testimony on the ground
that it was irrelevant. The court overruled his objection. The court erred, he
contends, and because the testimony was highly prejudicial, his conviction should
be set aside.
“Generally, evidence of other crimes committed outside of those charged is
not admissible. However, other crimes evidence may be admissible if it is
inextricably intertwined with the evidence regarding the charged offense.” Id.
(internal citation omitted). In this case, Fallen’s past firearms offenses were
relevant to two elements of the forcible assault: Fallen’s apparent present ability to
inflict imminent bodily harm, and the agents’ reasonable apprehension of such
15 harm. The prior offenses, when coupled with Fallen’s threats, made it more
“apparent” to the agents that Fallen was armed with a gun. The agents testified
that their knowledge of Fallen’s criminal history reinforced their apprehension that
Fallen might shoot them at any moment. Thus, the other crimes evidence was
inextricably intertwined with the evidence regarding the charged offense.
Such intrinsic evidence may nevertheless be excluded if its probative value
“is substantially outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403.
Rule 403 is an extraordinary remedy, however, “which should be used only
sparingly since it permits the trial court to exclude concededly probative evidence.
The balance under the Rule, therefore, should be struck in favor of admissibility. . .
. The question implicated by Rule 403 is not whether evidence is prejudicial in and
of itself, but whether its probative value ‘is substantially outweighed by the danger
of unfair prejudice.’” Fortenberry, 971 F.2d at 721 (internal citations omitted).
We do not believe that the prejudicial nature of the other crimes evidence
substantially outweighed its probative value. The district court instructed the jury
during both agents’ testimony that Fallen’s prior offenses were to be “considered
only on the issue of whether the victims reasonably apprehended immediate bodily
harm at the time of the alleged assault.” Furthermore, to avoid any association by
the jury between making a threat and making a false statement, the court limited
16 the evidence of the 1990 felony conviction for making a false statement in
connection with purchasing a firearm; the agents were allowed to testify only that
Fallen had a conviction for “a violation that was involved in the purchasing of a
firearm.” And, although Fallen’s offenses were remote in time, their strong
probative value in relation to the offense weighed in favor of their admission.
Thus, the district court did not abuse its discretion in admitting evidence of
Fallen’s prior criminal history.
2.
The second evidentiary ruling Fallen questions came when the prosecutor
asked Agent Mikosky how many times he had been “shot at” during his law
enforcement career. Fallen’s lawyer objected, contending that the answer would be
irrelevant. The court overruled the objection, and Mikosky replied, “I’ve been shot
at three times, sir.” The prosecutor then asked, “[h]ow would you compare the
incident at Thomas Fallen’s house on October 4th, 1994 with the other times you
were shot at?” Defense counsel objected again, and the court replied, “I’m going
to sustain the objection. I’ll recede from my previous ruling. Disregard the last
answer of the witness, ladies and gentlemen.” Thus, the jury was instructed not to
consider the allegedly improper evidence.
17 Assuming that the jury should not have heard the prosecutor’s questions and
Mikosky’s responses and that the court’s instruction was inadequate to cure the
error, we must determine whether the error was harmless. United States v. Hands,
184 F.3d 1322, 1329 (11th Cir. 1999) (“An erroneous evidentiary ruling will result
in reversal only if the resulting error was not harmless.”). In this case, we are
convinced that any error “had no substantial influence on the outcome,”
Fortenberry, 971 F.2d at 722, in light of the substantial remaining evidence that
Mikosky and Fultz’s apprehension of serious bodily harm during their encounter
with Fallen was reasonable under the circumstances. We thus conclude that any
error was harmless because “sufficient evidence uninfected by error supports the
verdict.” Id.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
18 PROPST, District Judge, dissenting:
The appellant was indicted for and convicted of “forcible assault.” I see no
evidence that he committed an assault nor that he used force. There was no
evidence of any act by the defendant except for the pulling back of a curtain. I
respectfully dissent.
When a statute does not define “assault,” this court gives the term its
meaning at common law. United States v. Williams, 197 F.3d 1091, 1095 (11th
Cir. 1999); United States v. Guilbert, 692 F.2d 1340, 1343 (11th Cir.1982).
According to Guilbert, “[a]t common law, ‘assault’ had two meanings, one being a
criminal assault, which is an attempt to commit a battery [not present in this Fallen
case], and the other being tortious assault, which is an act that puts another in
reasonable apprehension of immediate bodily harm.” Id. (emphasis added). In
United States v. Estrada-Fernandez, 150 F.3d 491, 495 (5th Cir. 1998), the Fifth
Circuit referred to an assault which “can be based upon an act that merely places
the victim in reasonable apprehension of imminent bodily harm.” (quoting
Guilbert, 692 F.2d at 1345, (noting difference between 18 U.S.C. §113(d) and
§113(c))) (emphasis added). In Ladner v. United States, 358 U.S. 169 (1958), the
Supreme Court repeatedly referred to acts of assault and actors. The Ladner Court,
referring to the policy of lenity, stated that “[w]hen choice has to be made between
19 two readings of what conduct Congress has made a crime, it is appropriate, before
we choose the harsher alternative, to require that Congress should have spoken in
language that is clear and definite. We should not derive criminal outlawry from
some ambiguous implication.” Id. at 177-78 (quoting United States v. Universal
C.I.T. Credit Corp., 344 U.S. 218, 221-22 (1952)). Title 18 U.S.C. §111(a) refers
to “acts in violation of this section”. The Model Penal Code contains even more
restrictive definitions of assaults. See §211-0 et seq. Section 1.13(2) of the Model
Penal Code defines “act” as a “bodily movement whether voluntary or
involuntary.” Black’s Law Dictionary defines an “act” as something “done” or
“performed.” Black’s Law Dictionary 24 (5th ed. 1979) (emphasis added).
I have not found any cases in which mere words have been held to
constitute an assault. There are few cases that discuss this specific issue,
apparently because it has not been often raised. In Dunkleberger v.
Commonwealth of Pa. Board of Probation & Parole, the Supreme Court of
Pennsylvania held that words alone, no matter how threatening, cannot constitute
“assault,” because the “actor must be in a position to carry out the threat
immediately and must take some affirmative step to do so.” 573 A.2d 1173, 1174
(Pa. 1990) (emphasis added).
The Government primarily relies upon United States v. Hernandez, 921 F.2d
20 1569 (11th Cir. 1991); United States v. Wollenzien, 972 F.2d 890 (8th Cir. 1992);
United States v. Street, 66 F.3d 969 (7th Cir. 1995); United States v. Walker, 835
F.2d 983 (2d Cir. 1987); United States v. Fernandez, 837 F.2d 1031 (11th Cir.
1988); and United States v. Renfro, 620 F.2d 497 (5th Cir. 1980). Each is
distinguishable, at the very least, on the following bases:
1. Hernandez
Spoke heatedly at close range, poked the agent in a threatening manner.
“He got right up against me, nose to nose . . .” and threatened the victim. 921 F.2d
at 1576.
2. Wollenzien
The agent was struck in the back of the neck from behind with a severe
blow. 972 F.2d at 981.
3. Street
“Street got out of his car and approached the rangers, swinging his fists
and shouting obscenities. Street stood face to face with Coe for about fifteen
minutes trapping him between the open door and the inside of the truck threatening
him . . .” 66 F.2d at 975-976.
4. Walker
The defendant walked into an office; used abusive language; stood over
21 the victim; threatened him; gestured with his thumb and index finger; removed his
jacket; walked within inches of victim while following him from office; and had to
be “separated.” 835 F.2d at 987-988.
5. Fernandez
Defendant followed the victim, ran after him, and chased him. 837 F.2d
at 1032-1033. He then “bumped into him.” Id. The defendant’s chest touched the
victim’s arm after a threat. Id. The victim stated that the defendant had pushed
him. Id.
6. Renfro
“When they got to their office door, the employees saw Agent Tichenor
lying on the floor with defendant Renfro on top of him.” 620 F.2d at 499. One
witness said Renfro was choking him. Id.
The majority cites United States v. Chestaro, 197 F.3d 600 (2d Cir. 1999).
In Chestaro, the defendant removed a box-cutter “from his pocket, [and] he began
to swing it at the officers. . . Each officer received a minor injury as a result of the
altercation.” Id. at 603. Perhaps the closest case cited by the majority in support of
the majority conclusion is United States v. Chambers, 195 F.3d 274 (6th Cir.1999).
There, however, in full view of the officers, the defendant, who had been told by
FBI agents, “FBI, FBI, get down, get down,” instead “attempted to place his hand
22 in his right front coat pocket . . . . and, in response [the agents] tackled Chambers
and found a loaded 380 caliber Bersa semi-automatic pistol in his right front coat
pocket.” Id. at 276. While I do not maintain that there must be proof of physical
contact or a view of the weapon, I do maintain that there must be an act which
evinces an assault and force, and not mere words. There is no question that the
officers here could have reasonably concluded that Fallen had a weapon. That,
however, is not the sole issue. The primary issue is whether he committed a
forcible assault. There is no evidence that he did so unless moving a curtain
constitutes a forcible assault. There is a vast difference between what happened
here and what happened in Chambers, where the defendant had been placed under
arrest and told to “get down” but then reached for his pocket where he actually had
a firearm. Id.
In United States v. Crouthers, 669 F.2d 635, cited by the majority, the victim
was actually kidnapped and forced to open bank safes. The defendant participated
in the planned robbery. Again, I do not say that the alleged victims here had to see
a firearm. I only maintain that there had to be evidence of forcible assault, not
simply an oral threat or intimidation.
In United States v. Le Compte, another case upon which the majority relies,
the defendant “physically attacked Welch with his fists and feet and knocked her
23 down into a ditch where he continued to kick her and threaten her.” 108 F.3d 948,
(8th Cir. 1997). The court held that the victim could reasonably assume that the
defendant might also hit her with a rock which he held while standing over her. Id.
at 952.
In United States v.Mathis, 579 F.2d 415, 418 (7th Cir. 1978), also cited by
the majority, the defendant pulled out an automatic pistol, took the victim’s
ignition key and ordered him to give money or he would be killed. Interestingly,
the defendant was found guilty of assaulting or interfering with a federal agent
without the use of a deadly or dangerous weapon. Id. at 417.
There may be some scattered “kudzu” language1 in the cases which supports
the majority position, but, again, I find no case in which it has been found that mere
words stated on the other side of a door with no significant act or deed can
constitute an assault of any kind. The defendant could have, perhaps, been found
guilty of intimidation, but he was not. The case was submitted only on “forcible
assault” and the lesser included offense of simple assault.2 In Fernandez, the
1 “Kudzu language” is language that persistently spreads into areas not applicable nor contemplated when initially written. 2 It should be noted that the appellant was not convicted of a misdemeanor simple assault pursuant to 18 U.S.C. §111(a)(2), but of a felony pursuant to the same section. The indictment did not charge “intimidation” even in the alternative. It charged that the defendant “knowingly and willfully did forcibly assault . . . .” The jury was instructed that “the defendant can be found guilty of the offense . . . only if all of the following facts are proven . . . First, that the defendant forcibly assaulted the person . . . .”
24 Eleventh Circuit stated, “The appellant correctly states that ‘the concept of the use
of force contemplates and requires more than a person merely verbalizing or
implying threats involving the future use of force.’ . . . . The word ‘forcibly means
only that some amount of force must be used’” (emphasis added) (citations
omitted). Id. at 1035. Other than possibly in dicta, no Eleventh Circuit case has
stated to the contrary.
Assault is sometimes defined as “attempted battery.” “Menacing” is
sometimes referred to an attempted assault. Even “menacing” likely requires some
act. I am well aware that an “assault” does not require injury or even touching.
However, I do believe that it requires more than words, and that a curtain “twitch”
is not sufficient.
Will any person who goes to an unopened door and says to a federal officer,
“I have a gun. . . . Get off my porch or I will shoot you,” be guilty of forcible
assault?3 An assault is an assault. The fact that the victim is a federal officer only
makes it a federal crime. It does not change the nature of an assault. The majority
has not cited any case in which an act by the defendant as innocuous as moving a
curtain, or some similar act, coupled with mere words, was held to be a forcible
3 The majority has not discussed what right the officers had to be on the appellant’s porch and I have not considered it. The defendant threatened to shoot the officers only if they did not leave his property. There is no evidence that he caused any problem after they did so. While I do not condone such a threat, it is not tantamount to an assault.
25 assault.
While I will not address the other issues raised by the appellant, I will note
that the marginal admission of evidence may well have worked to the appellant’s
substantial prejudice in, at the very best, a marginal case of forcible assault. The
jury found Fallen guilty of forcible assault rather than the lesser included offense of
simple assault, which was also submitted to them. The evidence here does not
appear to even reach the level of the majority’s own definition of misdemeanor
“simple assault,” which is remarkably similar to the majority’s definition of forcible
assault, much less to the level of a felony.