United States of America v. Lee Graham

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1335
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
L EE G RAHAM ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 103—David H. Coar, Judge.
____________
A RGUED S EPTEMBER 22, 2004—D ECIDED D ECEMBER 13, 2005
____________
Before C OFFEY , W ILLIAMS , and S YKES , Circuit Judges.
C OFFEY , Circuit Judge. In 2003, Lee Graham was
charged with two counts of assaulting federal officers in
violation of 18 U.S.C. § 111(a). A jury found the defen-
dant not guilty on Count I and guilty on Count II. The
defendant claims that his conviction on Count II should be
reversed because the trial judge incorrectly defined the
term “intentionally” in a supplemental jury instruction
when he stated that in order to find that the defendant
acted intentionally under § 111 they must find that the
defendant made contact with one or more of the federal
officers “deliberately and not by accident or mistake.” We
affirm.

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2 No. 04-1335
1 In October of 2002, Davis, Channella’s brother, had been
released on parole to reside in the Graham’s apartment at 9130
Bennett in Skokie, Illinois.
I. BACKGROUND
On January 29, 2003, four Deputy United States Mar-
shals—Ambrose, Block, O’Malley, and Andrews—executed
an arrest warrant for Edward Davis for a parole violation at
the home of the defendant, Lee Graham, and his wife
Channella. 1 Prior to executing the warrant, the deputies
were informed that Davis was known to act belligerently
and would likely attempt to evade arrest. Accordingly, they
proceeded to the Graham’s apartment wearing body gear
(labeled “POLICE”) and carrying guns, OC spray (“pepper
spray”), radios, handcuffs, and batons.
When the deputies arrived at the Grahams’ apartment
complex, they encountered the defendant in the vestibule of
the building, waiting to be picked up for work. During this
encounter, one of the deputies asked the defendant if he
knew Channella Graham and the defendant answered in
the affirmative, stating that Channella was his wife. The
deputies then asked the defendant if they could enter his
apartment to speak with Channella. The defendant agreed
and offered to get Channella. He then lead three of the
deputies—Deputy Ambrose waited behind the building in
case Davis tried to escape—to his apartment and asked
them to wait in the entryway while he notified Channella
that they wished to speak with her. The defendant then
went to a back bedroom in the apartment to get Channella.
Within minutes, the defendant returned from the bed-
room with Channella who, according to the deputies,
appeared agitated and immediately began “yelling” and

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No. 04-1335 3
2 Channella, on the other hand, contradicted the deputies’
testimony, stating that she “hadn’t raised [her] voice because
the children were sleeping” and that she had had to ask the
deputies to “quiet down” because they were “yelling and scream-
ing.”
3 Deputy Block testified that it was not his practice to carry
arrest warrants with him when he arrested individuals as he
was not legally required to do so and because, in his experi-
ence, people often confuse arrest warrants with search warrants.
4 The defendant denied that he had “ever put his hands” on any
of the deputies.
“cursing” at them. 2 Deputy Block stated that while Chan-
nella was “screaming” at the deputies, he tried to explain to
her that they were looking for Davis to execute an arrest
warrant. Channella responded that Davis was not there and
that she had no idea where to find him. Deputy Block then
informed the Grahams that the deputies needed to search
their home in order to verify that Davis was not on the
premises. In response, the Grahams demanded to see a
warrant. Block did not have the arrest warrant on his
person, as he was not obligated to carry one, even though
one had been obtained. 3
Because the deputies did not produce a warrant, the
Grahams continued to argue with the deputies and re-
fused to allow them to search their home. Deputy Block
testified that at some point during this argument, the
defendant put his “two hands to [Deputy O’Malley’s] chest”
and told him “he wasn’t coming in.” 4 At this time, Deputy
O’Malley ordered that the Grahams be handcuffed for
“officer safety reasons.”
Channella allowed the deputies to cuff her without
incident, but the defendant refused to oblige. According
to Deputy Ambrose, when he and O’Malley tried to ap-
proach the defendant to cuff him, the defendant threw a

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4 No. 04-1335
5 The deputies later found out that Davis was staying with his
wife in Texas, where he was apprehended “a couple of days” after
this incident.
6 The defendant was charged with the assault of Deputy O’Malley
on Count I and the assault of Deputy Ambrose on Count II.
punch at Ambrose, striking him in the forehead. Deputies
O’Malley and Ambrose then proceeded to “wrestle” the
defendant to the ground, but were unable to put the cuffs on
him. At this time, the defendant struck Ambrose “in the
side of the head with his elbow.” Deputy Ambrose re-
sponded, punching the defendant twice in the face. Accord-
ing to Ambrose, this action had no effect on the defen-
dant and as a result he found it necessary to spray the
defendant with pepper spray in hopes of taking control of
him. Ambrose went on to state that even after being
sprayed, the defendant continued to “lunge” at the deputies,
so he sprayed him a second time. At this point, the defen-
dant retreated to a back bedroom; shortly thereafter, he
emerged from the bedroom screaming that his eyes were
burning. At this time, the deputies cuffed the defendant and
proceeded to rinse his eyes. After securing the defendant,
the deputies commenced their search of the Grahams’
apartment and found no trace of Davis. 5
Thereafter, on February 24, 2003, Graham was indicted
on two counts of assaulting federal officers in violation of 18
U.S.C. § 111(a), 6 which states in pertinent part:
“Whoever . . . (1) forcibly assaults, resists, opposes,
impedes, intimidates, or interferes with any [officer
of the United States] 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

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No. 04-1335 5
7 See United States v. Hathaway, 318 F.3d 1001, 1008-09 (10th
Cir. 2003) (more than simple assault “under § 111(a) includes
any assault that involves actual physical contact . . . but does
not involve a deadly or dangerous weapon or bodily injury.”).
8 Section 4.06 of the Pattern Criminal Federal Jury Instruc-
(continued...)
under this title or imprisoned not more than 8 years, or
both.”
The indictment charged the defendant with “more than
simple assault” on both counts because the government
alleged that he made physical contact with both officers, but
he did not use a deadly or dangerous weapon or in-
flict bodily injury upon them.7
After the presentation of the evidence at Graham’s trial,
the court instructed the jury that the word “forcibly” as
used in § 111(a) was defined as follows: “To have acted
‘forcibly’ the defendant must have intentionally struck,
pushed or intentionally have made physical contact with
one or more of the Deputy Marshals.” On the second day
of deliberations, the jury asked the trial judge to define
the term “intentionally” as used in the jury instructions.
Out of the jury’s presence, the trial judge met with the
attorneys and asked if they had any suggestions as to
how he should respond to the jury’s inquiry. There, he
stated, “I probably should not have used the word ‘inten-
tional’ [to define the term ‘forcibly’] because that word’s not
used in the statute. It’s not an element. Knowingly would
have been the appropriate word, but having used the word
‘intentional,’ I think the jury may need some help.” Because
he believed that knowingly was the appropriate term, the
judge modified the Seventh Circuit Criminal Pattern Jury
Instruction defining the term “knowingly” to create a
supplemental jury instruction that defined the term “inten-
tionally” to the jury. 8 The supplemental instruction read:

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6 No. 04-1335
8 (...continued)
tions for the Seventh Circuit defines “knowingly” as follows:
When the word “knowingly” . . . is used in these instructions,
it means that the defendant realized what he was doing
and was aware of the nature of his conduct, and did not
act through ignorance, mistake or accident . . . .”
“When the word ‘intentionally’ is used in the instruction
defining ‘forcibly,’ it means that if the defendant, Lee
Graham, struck, pushed, or made physical contact
with one or more of the deputy marshals, the push,
strike or physical contact must have been done deliber-
ately and not by accident or mistake, in order for his
acts to have been done forcibly.”
The defense objected to the trial court’s supplemental
instruction, both before it was given to the jury and in a
post-trial motion, arguing that it did not adequately de-
fine the term “intentionally.”
Graham was acquitted on Count I (assault of O’Malley),
but convicted on Count II (assault of Ambrose). On Decem-
ber 9, 2003, the defendant filed a timely motion for a new
trial and a motion for judgment of acquittal on Count II.
The trial court denied the motions and entered judgment on
January 26, 2004. The defendant appealed the judgment on
February 6, 2004, claiming that the district court, in his
response to the jury’s question, improperly defined the word
“intentionally” and that this jury instruction affected the
verdict on Count II.
II. ANALYSIS
The only issue the defendant raises on appeal is wheth-
er the trial court erred when he instructed the jury that the
word “intentionally,” as used in the jury instruction defining
the term “forcibly,” meant “that if the defendant, Lee
Graham, struck, pushed, or made physical contact with one

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No. 04-1335 7
9 See United States v. Ettinger, 344 F.3d 1149 (11th Cir. 2003);
United States v. Kleinbart, 27 F.3d 586 (D.C. Cir. 1994); United
States v. Jim, 865 F.2d 211 (9th Cir. 1989); United States v.
Hill, 526 F.2d 1019, 1027 (10th Cir. 1975), cert. denied, 425 U.S.
940 (1976).
or more of the deputy marshals, the push, strike or physical
contact must have been done deliberately and not by
accident or mistake.” According to the defendant, the trial
court’s definition of the term “intentionally” improperly led
the jury to believe that if they found that the defendant did
not act by “accident or mistake,” he must have acted “inten-
tionally,” thereby allowing them to ignore the specific intent
element of the statute. We review a district court’s decision
with respect to jury instructions under the abuse of discre-
tion standard. United States v. Jefferson, 334 F.3d 670, 672
(7th Cir. 2003).
A. 18 U.S.C. § 111 Intent Requirement
Initially, let us make clear that the defendant’s assertion
and belief that an assault on a federal officer under 18
U.S.C. § 111 requires a showing of specific intent is in error.
In United States v. Woody, 55 F.3d 1257, 1265-66 (7th Cir.
1995), we held that § 111 is not a specific intent crime. “The
government may establish proof of a forcible assault by
demonstrating that the defendant made ‘such a threat or
display of physical aggression toward the officers as to
inspire fear of pain, bodily harm, or death.’ ” Id. at 1266
(citing United States v. Schrader, 10 F.3d 1345, 1348 (8th
Cir. 1993) (quoting United States v. Walker, 835 F.2d 983,
987 (2d Cir. 1987)). Moreover, in United States v. Ricketts,
146 F.3d 492, 497 (7th Cir. 1998), we revisited our holding
in Woody that § 111 is a general intent crime and, after
reviewing the law of numerous circuits, 9 we declined to
overrule Woody. In spite of our holdings in Woody and

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8 No. 04-1335
10 In Green, this court held that an assault on a federal official is a
“specific intent crime, requiring proof that the defendant intended
to frighten or inflict harm upon his victim.” 927 F.2d at 1008.
Ricketts, the defendant for reasons unexplained relies on
United States v. Green, 927 F.2d 1005 (7th Cir. 1991), for
his position that § 111 is a specific intent crime.10 However,
our opinions in Woody and Ricketts—which neither the
defendant nor the government discussed in their respective
briefs—effectively overruled Green on the scienter element
of § 111 and therefore the defendant’s assertion that § 111
is a specific intent crime is in error. See Woody, 55 F.3d at
1266; Ricketts, 146 F.3d at 497.
B. Jury Instructions
This court will affirm the jury’s decision if “the jury
instructions fairly and accurately summarize[d] the law and
[had] support in the record.” United States v. Aldaco, 201
F.3d 979, 989 (7th Cir. 2000). “We have held that the
district court retains broad discretion in deciding how to
respond to a question propounded from the jury and that
the court has an obligation to dispel any confusion quickly
and with concrete accuracy.” United States v. Sims, 329
F.3d 937, 943 (7th Cir. 2003) (citing United States v. Young,
316 F.3d 649, 661 (7th Cir. 2002)). When reviewing a
supplemental instruction this court must apply a three-part
test, asking: “(1) whether the instruction as a whole fairly
and adequately treated the issue; (2) whether the supple-
mental instruction was a correct statement of law; and (3)
whether the district court answered the jury’s question
specifically.” United States v. Sims, 329 F.3d 937, 943 (7th
Cir. 2003).
The trial judge initially instructed the jury that, “[t]o
have acted ‘forcibly’ [within the meaning of § 111] the

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No. 04-1335 9
defendant must have intentionally struck, pushed or
intentionally have made physical contact with one or more
of the Deputy Marshals.” On the second day of delibera-
tions, the jury asked the trial court to define the term
“intentionally” as it was used in the jury instructions. When
presented with this question, the trial judge recognized that
the term intentional does not appear in the statute and he
was of the opinion that he should not have used the term.
Rather, he believed that he should have used the term
“knowingly” to define “forcibly” because it properly reflected
the mental state required for a conviction under § 111.
Therefore, in order to correct his error, the trial judge
created a supplemental jury instruction defining the term
“intentionally” that was consistent with the Seventh Circuit
Criminal Pattern Jury Instruction’s definition of the term
“knowingly.” The supplemental instruction read:
“When the word ‘intentionally’ is used in the instruction
defining ‘forcibly,’ it means that if the defendant, Lee
Graham, struck, pushed, or made physical contact with
one or more of the deputy marshals, the push, strike or
physical contact must have been done deliberately and
not by accident or mistake, in order for his acts to have
been done forcibly.”
Under the three-part test of Sims, we initially address
whether this supplemental jury instruction fairly and
adequately treated the issue. The jury asked the trial
court to define the term “intentionally” as it was used in its
initial jury instruction defining the term “forcibly” under
the statute. Recognizing that the term “intentionally” was
not consistent with the language of the statute or the
scienter element of § 111, the trial court believed the use of
the term “intentionally” in the jury instructions was in
error. Because, as discussed supra, § 111 is a general intent
crime which requires only that the defendant acted with
knowledge of his conduct, we agree with the trial court that

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10 No. 04-1335
11 We note that even if the trial court had not provided the jury
with the supplemental instruction and improperly maintained
that the jury must find that the defendant acted intentionally
in order to find him guilty under § 111, the error would have been
of no consequence to the outcome of this case. That is because the
effect of such an error would have been to place a higher burden
on the prosecution than was required for a conviction under § 111.
its initial instruction to the jury was in error. Woody, 55
F.3d at 1265-66. However, we are also of the opinion that
the trial court’s supplemental instruction corrected the
error.
To establish that a defendant acted with knowledge,
the prosecution must show that “the defendant realized
what he was doing and was aware of the nature of his
conduct, and did not act through ignorance, mistake or
accident . . . .” 7th Circuit Criminal Pattern Jury Instruc-
tions § 4.06. In accordance with this definition, the trial
court informed the jury, through the supplemental in-
struction, that in order to find the defendant guilty under
the statute, they had to find that he struck, pushed or made
physical contact with “one or more of the deputy marshals
. . . deliberately and not by accident or mistake.” Because
this supplemental instruction expressed the proper mental
state required for a conviction under § 111, we conclude
that the trial court fairly and adequately treated the issue,
as the supplemental instruction corrected the trial court’s
previous error in using the term “intentionally” to define
“forcibly” under the statute. 11
The next Sims inquiry is whether the supplemental
instruction was a correct statement of law. We have already
concluded that the trial court’s supplemental instruction
expressed the proper mental state required for a conviction
under § 111 in this Circuit and, therefore, was a correct
statement of law.

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No. 04-1335 11
Finally, we are convinced that the trial court’s supple-
mental instruction specifically answered the jury’s question,
thereby fulfilling the third Sims’ requirement. The jury
asked the trial court to define the word “intentionally” as it
was used in the jury instructions and his response specifi-
cally addressed that question. Accordingly, because we
believe that the trial court’s supplemental jury instruction
satisfied the requirements of Sims, we hold that the
additional instruction was proper and not in error.
We note that even if we were to assume that the trial
court’s supplemental instruction was in error—which we
specifically hold that it was not—such error would not
require a reversal of the defendant’s conviction of assault of
Deputy Ambrose. Reversal for an improper jury instruction
is warranted only if the instruction misguides the jury so
much that the litigant is prejudiced. United States v. Lloyd,
71 F.3d 1256, 1266 (7th Cir. 1995). In this case, the defen-
dant was clearly not prejudiced by the trial court’s instruc-
tion because, if anything, it placed a more onerous burden
on the prosecution than was required under § 111. More-
over, the defendant’s conviction for assault on Deputy
Ambrose had ample support in the record. Deputies O’Mal-
ley, Ambrose, and Block all testified that during their
struggle to handcuff the defendant in order to search the
apartment for Davis, the defendant punched and assaulted
Ambrose. Given this testimony, the jury could have found
that the defendant violated § 111 by forcibly assaulting
Deputy Ambrose while he was engaged in the performance
of his official duties.
III. CONCLUSION
We A FFIRM the defendant’s conviction on Count II of
the indictment.

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12 No. 04-1335
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-13-05

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