United States of America v. Deitron Davis

10-4104-cr
United States of America v. Deitron Davis
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term 2012 5
6
(Argued: February 27, 2012 Decided: August 24, 2012) 7
8
Docket No. 10-4104-cr 9
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UNITED STATES OF AMERICA, 11
12
Appellee, 13
14
-- v. -- 15
16
DEITRON DAVIS, 17
18
Defendant-Appellant. 19
20
-----------------------------------------------------x 21
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B e f o r e : WALKER, LYNCH and DRONEY, Circuit Judges. 23
Appeal from a judgment of the United States District Court 24
for the Eastern District of New York (Frederic Block, Judge) 25
convicting defendant of narcotics offenses and resisting arrest. 26
Appellant challenges his convictions as based on insufficient 27
evidence. We AFFIRM in part and VACATE in part, and REMAND for 28
further proceedings. 29
BRUCE R. BRYAN, Syracuse, NY, for 30
Appellant. 31
32
THOMAS M. SULLIVAN, Assistant U.S. 33
Attorney for the Eastern District 34
of New York (Susan Corkery, on the 35
brief), for Loretta E. Lynch, U.S. 36
Attorney for the Eastern District 37
of New York, for Appellee. 38
39
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JOHN M. WALKER, JR., Circuit Judge: 1
Defendant-Appellant Deitron Davis appeals from a judgment of 2
the United States District Court for the Eastern District of New 3
York (Frederic Block, Judge), following a jury trial, convicting 4
him of narcotics offenses and resisting arrest. On appeal, Davis 5
argues that (1) there was no evidence from which a jury could 6
make the requisite finding that he knew that the criminal scheme 7
at issue involved narcotics distribution, and (2) evidence that 8
he fled from the police and struggled against being handcuffed 9
did not support a conviction for misdemeanor resisting arrest. 10
We hold that the evidence supported Davis’s convictions for the 11
narcotics charges but not for resisting arrest. We therefore 12
AFFIRM as to the former charges but VACATE and REMAND with 13
instructions to dismiss the latter. 14
BACKGROUND 15
I. Factual Background 16
The evidence at trial demonstrated the following: 17
On June 2, 2008, employees of Forward Air shipping company’s 18
Columbus, Ohio branch received certain damaged crates that were 19
in transit from Phoenix, Arizona, to JFK Airport in New York 20
City. In accordance with company policy, the employees opened 21
the packages and discovered what appeared to be plastic-wrapped 22
bales of marijuana. Forward Air’s records revealed that the 23
shipment had been sent from Phoenix by “Carl Paplow.” The bill 24
of lading stated that the consignee was “Robert Francis” and that 25
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the crates contained “rims, tires and accessories, [and] audio 1
parts,” Appendix (“App.”) 23. The employees reported their 2
discovery to local authorities, who contacted the DEA’s New York 3
office. The DEA requested that the crates be sent on to their 4
destination in the normal course for a controlled delivery. 5
The crates arrived at JFK on June 3 and Forward Air turned 6
them over to local DEA agents. The agents searched the crates 7
pursuant to a warrant and discovered 258 kilograms of marijuana. 8
They removed the marijuana, re-weighted the crates and returned 9
them to Forward Air’s JFK branch. While the crates were in DEA 10
custody, someone (apparently not Davis) sought to retrieve the 11
shipment from Forward Air’s JFK branch using a driver’s license 12
for “Robert Francis,” but was turned away as the crates were not 13
then available. 14
On June 3, the day the crates arrived in New York, Davis’s 15
friend Kieama Hyman and her friend Sherelle (whose last name does 16
not appear in the record) called Davis, looking for something to 17
do. Davis picked the two women up in his black Nissan Maxima and 18
drove to his cousin’s house nearby. According to Hyman, Davis 19
“started driving crazy” as he neared the house, App. 71, which 20
Hyman interpreted as Davis trying not to be seen. Once they 21
arrived at the house, Davis went inside while the two women 22
waited in the car. Davis returned and asked Hyman whether she 23
had identification. When she responded that she did, Davis asked 24
her if she would help pick up some rims for his car. Hyman 25
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agreed. Before they left Davis’s cousin’s house, Davis switched 1
cars to a gold Toyota Avalon. He claimed that the rims would not 2
fit inside the Maxima, though Hyman did not think the Avalon was 3
much bigger. Davis drove Hyman and Sherelle to a nearby Home 4
Depot. He then left the car and spoke to a man in a white van 5
for about five minutes. He returned to the Avalon and, 6
accompanied now by the white van, proceeded to Forward Air’s JFK 7
facility. According to a surveillance officer at the facility, 8
Davis “drove back and forth at least twice” before parking in 9
front of Forward Air. App. 52. 10
After stopping at Forward Air, Davis left the Avalon and 11
spoke once more with the driver of the white van. He then gave 12
Hyman a copy of the bill of lading for the shipment and told her 13
to go in and pick up the rims. Hyman and Sherelle went inside, 14
where Hyman presented the bill of lading and her identification 15
and signed some paperwork. The driver of the white van then 16
pulled up to the Forward Air bay and loaded the crates inside. 17
Once the crates were loaded in the van, Davis and the two women 18
drove off in the Avalon, followed by the white van -- and by DEA 19
agents. 20
Circling the blocks, Davis remarked that they were being 21
followed. He pulled over and shouted at Hyman and Sherelle to 22
get out of the car. As they did, Davis said he would be back to 23
pick them up and drove off. The agents then turned on their 24
strobe lights; the white van pulled over but Davis sped off in 25
the Avalon. 26
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The officers arrested Hyman and Sherelle. While under 1
arrest, Hyman received a phone call from Davis which she answered 2
at the officers’ instruction. Davis said he would pick the two 3
women up at a nearby intersection, but to make sure they were not 4
followed. Hyman and Sherelle walked towards the intersection, 5
where an agent observed Davis walking nearby. 6
The agent who saw Davis identified himself and drew his 7
weapon, at which point Davis ran. The agent chased Davis for 8
approximately ten minutes, during which time Davis ignored many 9
commands to stop and the agent several times caught up with and 10
struck Davis -- a large man at six feet seven inches -- with his 11
baton. Davis did not fight back. Eventually, other agents 12
joined the chase and tackled Davis. While pinned stomach-down on 13
the ground, Davis placed his hands under his body and was 14
“fighting [and] resisting” against being handcuffed for one or 15
two minutes, App. 123, though he ultimately was subdued, 16
handcuffed and arrested. There was no evidence that Davis 17
threatened or struck out at any of the agents. 18
After arresting Davis, the agents searched him and 19
recovered, inter alia, his driver’s license and a Jet Blue 20
Airways receipt listing Davis as a passenger on a May 6, 2008 21
flight from Phoenix to JFK. They later confirmed with Jet Blue 22
that Davis had been on that flight and that he previously had 23
flown from JFK to Phoenix on May 2. They also learned that 24
before Davis had boarded the May 2 flight, an FBI agent had asked 25
26
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him why he had no carry-on or checked luggage. Davis had 1
responded that he planned to buy clothes in Phoenix. 2
Davis was interviewed by DEA agents after his arrest. Among 3
other things, he claimed not to have heard of or been to Forward 4
Air. 5
II. Procedural Background 6
Davis was tried for conspiracy to distribute marijuana in 7
violation of 21 U.S.C. §§ 841(b)(1)(B)(vii) and 846; attempting 8
to possess marijuana with intent to distribute in violation of 21 9
U.S.C. § 841 (b)(1)(B)(vii); and the misdemeanor of resisting 10
arrest in violation of 18 U.S.C. § 111(a)(1). A jury convicted 11
him on all three counts. Hyman, Sherelle and the driver of the 12
white van were not charged because there was no evidence 13
contradicting their claims that they were unaware that the crates 14
contained marijuana. 15
Davis moved for a judgment of acquittal under Fed. R. Crim. 16
P. 29. With regard to the narcotics convictions, he argued that 17
“there was insufficient evidence that he knew that the shipment 18
contained a controlled substance.” Special Appendix (“S.A.”) 2. 19
The district court disagreed: 20
[T]he evidence, taken in the light most favorable to 21
the government, . . . established, inter alia, that 22
Davis traveled to Arizona (the source of the shipment) 23
less than a month before the shipment arrived; that he 24
possessed a bill of lading for the shipment (albeit 25
under another name); and that he told [Hyman] that he 26
was excited to go pick up “his rims.” A jury could 27
reasonably infer from those facts that Davis traveled 28
to Arizona to arrange the shipment and, therefore, that 29
he was the intended recipient of the shipment. 30
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Id. at 3. As to his conviction for resisting arrest, Davis 1
pointed out that the government had offered no evidence that 2
Davis had directed any force at the arresting officers. He 3
contended that evidence demonstrating only that he had not 4
yielded to arrest was legally insufficient for a conviction. The 5
district court rejected this argument as well, concluding that 6
Davis’s willful use of physical force in making it difficult for 7
officers to handcuff him permitted a conviction for resisting 8
arrest. 9
The district court entered a judgment of conviction on all 10
counts and sentenced Davis principally to a 60-month term of 11
imprisonment. Davis appeals from that judgment on the grounds 12
raised in his Rule 29 motion. 13
DISCUSSION 14
I. Standard of Review 15
“We review challenges to evidentiary sufficiency de novo, 16
‘view[ing] the evidence presented in the light most favorable to 17
the government, and . . . draw[ing] all reasonable inferences in 18
its favor.’” United States v. Szur, 289 F.3d 200, 219 (2d Cir. 19
2002) (quoting United States v. Autuori, 212 F.3d 105, 114 (2d 20
Cir. 2000)). “A defendant challenging the sufficiency of the 21
evidence supporting a conviction faces a heavy burden.” United 22
States v. Glenn, 312 F.3d 58, 63 (2d Cir. 2002) (internal 23
quotation marks omitted). We must uphold the conviction as long 24
as “any rational trier of fact could have found the essential 25
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elements of the crime beyond a reasonable doubt.” Jackson v. 1
Virginia, 443 U.S. 307, 319 (1979). 2
II. Convictions for the Narcotics Offenses 3
With regard to Davis’s convictions for conspiring to 4
distribute marijuana and attempting to possess marijuana with 5
intent to distribute, the question before us is straightforward: 6
Was the evidence at trial legally sufficient to support a finding 7
that Davis knew that the shipped crates contained a controlled 8
substance? 9
To prove that a person possessed a controlled substance with 10
intent to distribute, the government must prove “that the 11
defendant knew he was dealing with a controlled substance.” 12
United States v. Torres, 604 F.3d 58, 65-66 (2d Cir. 2010). The 13
same holds true for drug conspiracy charges. See id. at 66. The 14
government need not prove that the defendant knew the specific 15
drug at issue, but only that he was dealing with some controlled 16
substance. See United States v. Morales, 577 F.2d 769, 776 (2d 17
Cir. 1978). 18
On appeal, as he did in his Rule 29 motion before the 19
district court, Davis relies on a line of this Court’s decisions 20
reversing convictions for insufficient evidence that the 21
defendant knew the specific object of the criminal scheme at 22
issue. For example, in United States v. Ogando, 547 F.3d 102 (2d 23
Cir. 2008), this Court reversed the conviction of a taxi driver 24
who was scheduled to pick up a drug smuggler at an airport. We 25
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held that the evidence -- which consisted of the defendant’s 1
presence at the airport, earlier presence at another airport 2
where another co-conspirator was arrested, and associations with 3
certain other co-conspirators -- “simply show[ed] that 4
[defendant] was a livery cab driver regularly used by members of 5
this conspiracy.” Id. at 108; see also Torres, 604 F.3d at 70-71 6
(defendant’s suspicious behavior in attempting to take delivery 7
of narcotics shipment did not indicate knowledge that the 8
shipment contained drugs); United States v. Lorenzo, 534 F.3d 9
153, 160-61 (2d Cir. 2008) (defendant’s periodic involvement with 10
conspirators, including transferring money to one, was indicative 11
of illegal behavior but did not demonstrate knowledge that the 12
conspiracy involved narcotics); United States v. Rodriguez, 392 13
F.3d 539, 546-48 (2d Cir. 2004) (evidence demonstrated only that 14
defendant served as a lookout for some sort of illicit 15
transaction, not that he knew it was a drug transaction 16
specifically); United States v. Friedman, 300 F.3d 111, 126 (2d 17
Cir. 2002) (evidence of calls between conspirator and defendant, 18
and that defendant furnished guns to conspirator, did not 19
demonstrate that defendant knew that the object of the conspiracy 20
was extortion); United States v. Samaria, 239 F.3d 228, 236-38 21
(2d Cir. 2001) (gypsy cab driver’s presence in car with 22
conspirators, and assistance with loading non-transparent boxes 23
containing stolen credit card information, did not demonstrate 24
knowledge of conspiracy to commit credit card fraud), abrogated 25
26
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on other grounds, United States v. Huezo, 546 F.3d 174, 180 n.2 1
(2d Cir. 2008). 2
In each of these cases, save Torres, the defendant played a 3
role subordinate to that of the principal engaged in the criminal 4
conduct charged, and the defendant plausibly could have fulfilled 5
that role without knowing the scheme’s criminal nature. That is, 6
it is conceivable that the criminal enterprises at issue could 7
have functioned as planned without the requisite criminal 8
knowledge of the taxi driver (Ogando), the money transferor 9
(Lorenzo), the lookout (Rodriguez), the frequent caller and gun 10
supplier (Friedman), and the driver and box loader (Samaria). 11
This case is easily distinguishable from those cases, in which 12
the overall circumstances of each case did not support a finding 13
beyond a reasonable doubt that the defendant had the requisite 14
knowledge. The evidence in this case established, either 15
directly or by inference, that Davis played a principal role, 16
even a managerial one, in the drug conspiracy and for that reason 17
would have reasonably possessed the requisite criminal knowledge. 18
Torres, 604 F.3d 58, in which we reversed a conviction for 19
conspiracy to distribute cocaine, presented a factual scenario 20
closer to this one. Davis relies upon it to argue that the 21
evidence here is insufficient to prove his knowledge that the 22
Forward Air packages contained a controlled substance. In 23
Torres, the defendant Torres and several other men, in suspicious 24
fashion, had attempted to receive a UPS delivery of certain bulky 25
packages addressed to Torres. They greeted the deliveryman 26
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outside the destination address, presented a driver's license for 1
Torres that listed him as living at a different address, and 2
followed the deliveryman after he refused to turn over the 3
packages. Eventually, UPS and the police discovered that the 4
packages contained cocaine and staged a controlled delivery at a 5
UPS store. Once again, Torres suspiciously attempted to receive 6
the packages, and this time was arrested. Reviewing his 7
conviction, this Court concluded that the evidence supported 8
findings that “Torres had a connection with the Packages” and 9
that, based on his suspicious behavior, he “was most likely aware 10
that the Packages contained contraband of some kind.” Id. at 69. 11
But the record did not contain “any evidence that Torres knew the 12
Packages contained narcotics,” such as “evidence as to the nature 13
of Torres’s associations with the persons who shipped the cocaine 14
or with the persons who expected to distribute it.” Id. at 15
70-71. Because “[t]here was no evidence of any conduct by Torres 16
other than his efforts to gain possession of the Packages,” this 17
Court held that there was no evidence that Torres knew of the 18
Packages’ contents. Id. at 71. 19
There may be tension between Torres and decisions in other 20
circuits as to whether an inference of guilty knowledge may be 21
drawn from suspicious behavior of an intended recipient of a 22
narcotics package. See United States. v. Hernandez, 17 F. App’x 23
464, 467 (7th Cir. 2001) (collecting cases for the proposition 24
that “[a] jury may infer a defendant’s guilty knowledge based on 25
the suspicious circumstances surrounding receipt of a drug 26
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shipment”); see also, e.g., United States v. Hernández, 218 F.3d 1
58, 66-67 (1st Cir. 2000) (affirming convictions based on, inter 2
alia, the facts that one defendant was the intended recipient of 3
the shipment and thereafter controlled the packages, and another 4
defendant drove evasively after taking possession of the 5
packages); United States v. Gbemisola, 225 F.3d 753, 759-60 (D.C. 6
Cir. 2000) (“The Southeast Asian shippers placed heroin in the 7
false bottoms of the pots –- in an amount (and value) the jury 8
could reasonably have doubted they would have entrusted to 9
recipients who thought they were merely importing artifacts, and 10
in a location that would have been particularly risky if an 11
‘innocent’ recipient had decided to use the cooking pots for 12
their apparent purpose.”); United States v. Brown, 33 F.3d 1014, 13
1015-16 (8th Cir. 1994) (affirming the conviction of a defendant 14
who tried to take receipt of a UPS delivery of drugs in facts 15
resembling those in Torres); cf. United States v. Quilca–Carpio, 16
118 F.3d 719, 722 (11th Cir. 1997) (“[A] prudent smuggler is not 17
likely to entrust such valuable cargo to an innocent person 18
without that person’s knowledge.” (internal quotation marks 19
omitted)). But cases of this sort are fact-dependent. In this 20
case, we have no doubt, based on all the evidence, that the jury 21
permissibly could have inferred Davis’s guilty knowledge. 22
First, the evidence here did not link Davis only to the 23
receipt of the drugs but also to their initial shipment. Davis, 24
traveling without luggage, flew from New York to Phoenix, where 25
the shipment originated, a month before he attempted to receive 26
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the crates. Viewing that evidence in the light most favorable to 1
the government and as the district court correctly concluded, 2
“[a] jury could reasonably infer . . . that Davis traveled to 3
Arizona to arrange the shipment.” S.A. 3. And because it 4
logically can be inferred that one who arranges a shipment knows 5
its contents, the jury here easily could have found from the 6
totality of the evidence that Davis knew precisely what was in 7
the shipped packages. 8
Second, as noted earlier, the evidence showed that Davis had 9
an authoritative role in the criminal scheme. See United States 10
v. Cruz, 363 F.3d 187, 199 (2d Cir. 2004) (a jury may reasonably 11
infer guilty knowledge from evidence that the defendant exercised 12
authority within the conspiracy itself); Samaria, 239 F.3d at 235 13
(same). He controlled the circumstances surrounding the pick up 14
–- choosing when to pick up the crates, how to pick up the 15
crates, and who would pick up the crates. Specifically, Davis 16
recruited Kieama Hyman and her friend to pick up the crates even 17
though he easily could have done so himself; switched cars at his 18
cousin’s house; directed Hyman to use her identification to 19
retrieve the crates from Forward Air; and it appears that he 20
obtained a van with a driver to pick up the crates. See United 21
States v. Medina, 32 F.3d 40, 44 (2d Cir. 1994) (affirming 22
conviction in part because defendant approved participation of an 23
additional co-conspirator and supplied a gun); United States v. 24
Tussa, 816 F.2d 58, 63 (2d Cir. 1987) (affirming conviction of 25
defendant who took part in the negotiations leading to a drug 26
delivery). 27
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Third, the evidence showed that Davis concealed his 1
involvement in the criminal conspiracy: the crates were not 2
addressed to him (but to “Robert Francis”); he recruited another 3
person without knowledge of the true contents of the crates to 4
pick them up; and he lied to this person by telling her that he 5
did not have his driver’s license even though he did. This 6
evidence supports an inference of Davis’s knowledge of the 7
crates’ contents. See, e.g., Hernandez, 218 F.3d at 66 (“That 8
the name of the consignee was fabricated” supported the 9
conclusion that the defendant knew the container’s contents.); 10
United States v. Johnson, 57 F.3d 968, 972 (10th Cir. 1995) 11
(“Similarly probative of [defendant’s] guilty knowledge is the 12
fact that [defendant] listed on the airbill a false name and 13
nonexistent address for the package’s destination.”). These 14
facts, along with the fact that the bill of lading identified the 15
recipient as “Robert Francis” rather than Davis, and a person 16
claiming to be “Robert Francis” first tried to retrieve the 17
crates, are inconsistent with Davis’s statements to Hyman that 18
the crates contained rims for his car. 19
Finally, Davis’s possession of the bill of lading supports 20
an inference that he had the requisite knowledge. For one, taken 21
together with his recruitment of select people, it gave him not 22
only the “prospect[] of having sole dominion over the [crates],” 23
see Torres, 604 F.3d at 71, but sole dominion itself. 24
Furthermore, as we previously have observed, “possession of 25
documents relat[ing] to the crime” may support an inference of 26
27
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knowledge. Cruz, 363 F.3d at 199; see also Samaria, 239 F.3d at 1
235 (same). 2
Taken together, these circumstances easily permitted an 3
inference that Davis, far from being an unwitting courier for a 4
drug-distribution conspiracy, was a willing (if not central) 5
participant who knew that the shipment contained narcotics. See 6
United States v. Stewart, 485 F.3d 666, 671 (2d Cir. 2007) 7
(collecting cases for the proposition that a defendant’s guilty 8
knowledge “may be established through circumstantial evidence”). 9
We therefore have no difficulty affirming Davis’s convictions on 10
the narcotics counts. 11
III. Conviction for Resisting Arrest 12
The conviction for resisting arrest, however, presents a 13
different picture. 18 U.S.C. § 111 provides: 14
(a) In general.--Whoever-- 15
16
(1) forcibly assaults, resists, opposes, impedes, 17
intimidates, or interferes with [a U.S. officer or 18
employee] while engaged in or on account of the 19
performance of official duties . . . 20
21
shall, where the acts in violation of this section 22
constitute only simple assault, be fined under this 23
title or imprisoned not more than one year, or both, 24
and where such acts involve physical contact with the 25
victim of that assault or the intent to commit another 26
felony, be fined under this title or imprisoned not 27
more than 8 years, or both. 28
29
(b) Enhanced penalty.--Whoever, in the commission of 30
any acts described in subsection (a), uses a deadly or 31
dangerous weapon (including a weapon intended to cause 32
death or danger but that fails to do so by reason of a 33
defective component) or inflicts bodily injury, shall 34
be fined under this title or imprisoned not more than 35
20 years, or both. 36
37
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Davis was tried and convicted under the misdemeanor clause in 1
Section 111(a). We therefore must decide whether the evidence 2
permitted the jury to find, beyond a reasonable doubt, that Davis 3
“forcibly assault[ed], resist[ed], oppose[d], impede[d], 4
intimidate[d], or interfere[d] with [a U.S. officer or employee] 5
while engaged in or on account of the performance of official 6
duties” and, in doing so, committed “simple assault.” 7
A. “Simple Assault” Under Section 111(a) 8
In United States v. Chestaro, 197 F.3d 600 (2d Cir. 1999), 9
we considered a vagueness challenge to the predecessor version of 10
Section 111, which was identical to the current version in 11
relevant part. 1 The appellant in that case argued that “simple 12
assault,” which delineates misdemeanor conduct, was not clearly 13
defined and that the statute therefore did not sufficiently 14
distinguish between misdemeanors and felonies. We disagreed. We 15
noted “‘the settled principle of statutory construction that, 16
absent contrary indications, Congress intends to adopt the common 17
law definition of statutory terms.’” Id. at 605 (quoting United 18
States v. Shabani, 513 U.S. 10, 13 (1994)). We also pointed out 19
that the term “simple assault” appears elsewhere in the U.S. Code 20
-– in 18 U.S.C. § 113 –- and that it had “been held to ‘embrace 21
the common law meaning’” in that context. Chestaro, 197 F.3d at 22
1 Section 111(a)’s felony clause, not at issue here, 1
previously provided that “in all other cases, [the perpetrator] 2
would be fined under this title or imprisoned not more than three 3
years, or both.” In 2002, Congress boosted the maximum prison 4
term for the felony to eight years. And in 2008, Congress 5
replaced “in all other cases” with the language “where such acts 6
involve physical contact with the victim of that assault or the 7
intent to commit another felony.” 8
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605 (quoting United States v. Stewart, 568 F.2d 501, 504 (6th 1
Cir. 1978)). We therefore held that “simple assault,” as used in 2
Section 111(a), incorporated the established common law 3
definition of the phrase: a crime, not involving touching, 4
“committed by either a willful attempt to inflict injury upon the 5
person of another, or by a threat to inflict injury upon the 6
person of another which, when coupled with an apparent present 7
ability, causes a reasonable apprehension of immediate bodily 8
harm.” Chestaro, 197 F.3d at 605, 606 (internal quotation marks 9
omitted); see also United States v. Vallery, 437 F.3d 626, 631 10
(7th Cir. 2006) (“Under the common law, physical contact is the 11
line of demarcation between simple assault and battery.”). 12
Following Chestaro, we clarified that “simple assault” 13
retains its common law definition in the context of the current 14
version of Section 111(a). See United States v. Hertular, 562 15
F.3d 433, 440 (2d Cir. 2009). Thus, for a defendant to be guilty 16
of the misdemeanor of resisting arrest under Section 111(a), he 17
necessarily must have committed common law simple assault. See 18
id. 19
We recognize that there is disagreement among the federal 20
courts of appeals in interpreting Section 111(a)’s use of “simple 21
assault.” The main problem, as explained by the Ninth Circuit, 22
is that Section 111(a) “appears to prohibit six different types 23
of actions” –- assaulting, resisting, opposing, impeding, 24
intimidating and interfering -– “only one of which is ‘assault,’ 25
but then it draws the line between misdemeanors and felonies 26
solely by referencing the crime of assault.” United States v. 27
17

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Chapman, 528 F.3d 1215, 1218-19 (9th Cir. 2008). “Therefore, it 1
is unclear whether the statute prohibits acts of resistance, 2
opposition, impediment, intimidation, or interference that do not 3
also involve an underlying assault.” Id. at 1219. Several of 4
our sister circuits have taken the same approach as, or similar 5
approaches to, this Court –- namely, requiring some form of 6
common law simple assault for Section 111(a) misdemeanor 7
convictions. See Chapman, 528 F.3d at 1218-22; Vallery, 437 F.3d 8
at 630-34; United States v. Hathaway, 318 F.3d 1001, 1008-09 9
(10th Cir. 2003). 10
But two circuits have taken a different approach. In United 11
States v. Gagnon, 553 F.3d 1021 (6th Cir. 2009), the Sixth 12
Circuit, interpreting the predecessor version of Section 111, 13
opined that the approach taken by this Court and others 14
“disregards five of the six actions Congress specifically 15
delineated” and thus makes “a great deal of what § 111 does say 16
entirely meaningless.” Id. at 1026. That court therefore held 17
that in the context of Section 111(a), “simple assault” is not 18
limited to its common law meaning, but is “a term of art that 19
includes the forcible performance of any of the six proscribed 20
actions in § 111(a) without the intent to cause physical contact 21
or to commit a serious felony.” Id. at 1027 (emphasis omitted). 22
Construing the current version of Section 111, the Fifth Circuit 23
followed the Sixth Circuit’s lead. See United States v. 24
Williams, 602 F.3d 313, 317 (5th Cir. 2010). The Fifth Circuit 25
reasoned that the Sixth Circuit’s reading “avoid[s] rendering 26
superfluous the other five forms of conduct proscribed by 27
18

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§ 111(a)(1).” Williams, 602 F.3d at 317. That court also found 1
it “more consonant with the dual purpose of the statute, which, 2
the Supreme Court has noted, is not simply to protect federal 3
officers by punishing assault, but also to ‘deter interference 4
with federal law enforcement activities’ and ensure the integrity 5
of federal operations by punishing obstruction and other forms of 6
resistance.” Id. (quoting United States v. Feola, 420 U.S. 671, 7
678 (1975)). 8
While we do not find this reasoning to be without basis, we 9
ultimately are not persuaded by it. First, as in any task of 10
statutory construction, “[w]e begin with the statute’s text.” 11
United States v. Lyttle, 667 F.3d 220, 223 (2d Cir. 2012). And 12
as we noted in Chestaro, it is well-settled that “where a federal 13
criminal statute uses a common-law term of established meaning 14
without otherwise defining it, the general practice is to give 15
that term its common-law meaning.” United States v. Turley, 352 16
U.S. 407, 411 (1957); see Chestaro, 197 F.3d at 605. In defining 17
misdemeanor conduct under Section 111(a), Congress chose to use 18
the specific phrase “simple assault,” which as noted earlier has 19
a longstanding and precise meaning under the common law. 20
Second, not only does “simple assault” have an established 21
common law meaning, it does not appear to have a contrary meaning 22
in the vernacular, the U.S. Code or anywhere else. It therefore 23
would have been a peculiar phrase for Congress to employ for some 24
other, unspecified meaning –- especially after courts had 25
assigned the phrase its common law meaning in the context of 26
Section 113. See United States v. Delis, 558 F.3d 177, 183 (2d 27
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Cir. 2009). Indeed, so far as we can tell, no court, except for 1
the Fifth and Sixth Circuits in construing this law, has ever 2
understood “simple assault” as “‘a term of art that includes the 3
forcible performance of [assaulting, resisting, opposing, 4
impeding, intimidating, or interfering] without the intent to 5
cause physical contact or to commit a serious felony.’” See 6
Williams, 602 F.3d at 317 (quoting Gagnon, 553 F.3d at 1027) 7
(emphasis omitted). And our textual analysis gives us no reason 8
to believe that Congress had that understanding. 9
Third, it bears noting that Congress continued its use of 10
“simple assault” in Section 111(a) when it amended the statute in 11
2008. That amendment preceded the Fifth and Sixth Circuit’s 12
interpretation of “simple assault” discussed earlier. 2 Indeed, 13
it appears that every court to have interpreted Section 111(a)’s 14
use of “simple assault” before Congress amended the statute gave 15
the phrase its common law meaning. 3 One would think that 16
2 Although the Sixth Circuit interpreted the predecessor 1
version of Section 111 in Gagnon, Congress had already amended 2
the statute when that case was decided. See 553 F.3d at 1024 3
n.2. 4
3 In Gagnon, the Sixth Circuit relied partly on the Eighth 1
Circuit’s earlier statement that “in the context of § 111, the 2
definition of simple assault is conduct in violation of § 111(a), 3
which does not involve actual physical contact, a dangerous 4
weapon, serious bodily injury, or the intent to commit murder or 5
another serious felony.” United States v. Yates, 304 F.3d 818, 6
822 (8th Cir. 2002); see also Gagnon, 553 F.3d at 1026 n.6. In 7
Yates, however, the Eighth Circuit made clear that it adopted the 8
common law meaning of “simple assault” and only then used the 9
language contained in a neighboring statute to limit the 10
definition further. See Yates, 304 F.3d at 821-22. In other 11
words, the Eighth Circuit narrowed the common law meaning of 12
“simple assault” for purposes of Section 111(a); it did not 13
expand that meaning to include Section 111(a)(1)’s five remaining 14
acts. 15
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Congress, in amending the statute, would have corrected such a 1
broad misreading had one existed. 2
Furthermore, we do not believe, as the Fifth and Sixth 3
Circuits have worried, that ascribing “simple assault” its common 4
law meaning “render[s] superfluous the [non-assault] forms of 5
conduct proscribed by § 111(a)(1).” Williams, 602 F.3d at 317. 6
While we are not called upon today to interpret Section 111(a)’s 7
felony clause, we note that the statute’s five non-assault acts 8
would appear to be criminally prohibited by the felony clause 9
“where such acts involve . . . the intent to commit another 10
felony.” Thus, our interpretation does not necessarily run afoul 11
of the preference against “interpretations of statutes that 12
render language superfluous.” Conn. Nat’l Bank v. Germain, 503 13
U.S. 249, 253 (1992). 4
14
B. Davis’s Conduct 15
To be guilty of the misdemeanor of resisting arrest, Davis 16
must have, inter alia, committed common law simple assault: a 17
crime, not involving touching, “committed by either a willful 18
attempt to inflict injury upon the person of another, or by a 19
threat to inflict injury upon the person of another which, when 20
coupled with an apparent present ability, causes a reasonable 21
4 We recognize that the Fifth and Sixth Circuits’ 1
interpretation of “simple assault,” as a broad “term of art” 2
encompassing all of the actions listed in Section 111(a)(1), 3
would better “deter interference with federal law enforcement 4
activities,” which the Supreme Court has identified as part of 5
Congress’s intention in enacting Section 111. See Feola, 420 6
U.S. at 678. But we believe that the plain text of Section 111 7
and the other considerations described above command the 8
interpretation that we have given it. 9
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apprehension of immediate bodily harm.” Chestaro, 197 F.3d at 1
605 (internal quotation marks omitted). 2
The evidence adduced at trial did not permit such a finding. 3
It showed only that Davis ran from a DEA agent and, when 4
ultimately tackled to the ground, struggled against being 5
handcuffed -- primarily by putting his hands under his stomach. 6
While one of the arresting agents (the one who had chased Davis 7
on foot) testified on direct examination that Davis was 8
“fighting” during his arrest, App. 123, any suggestion that Davis 9
was striking blows, rather than more passively resisting being 10
handcuffed, was retracted by the agent. On cross-examination, 11
the agent testified that (1) Davis did not punch or attack anyone 12
during his arrest, (2) Davis was “using his muscles to avoid 13
having the hands forced behind his back to be cuffed,” App. 131- 14
32, and (3) certain injuries to the agent resulted from a fall 15
during the chase and not from any aggressions by Davis. Thus, 16
there was no evidence that Davis engaged in any conduct 17
whatsoever that demonstrated a desire to injure an agent or would 18
cause an agent to apprehend immediate injury. 19
Davis’s conviction for resisting arrest therefore must be 20
overturned. 21
CONCLUSION 22
For these reasons, we AFFIRM the judgment of the district 23
court with respect to Davis’s convictions on the narcotics 24
counts, but VACATE his conviction for resisting arrest. We 25
REMAND with directions to dismiss the Section 111(a) count and 26
for resentencing consistent with this opinion. 27
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