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No. 08-1486

 

In the Supreme Court of the United States

CHRISTIAN GAGNON, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
LANNY A. BREUER
Assistant Attorney General
THOMAS E. BOOTH
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

QUESTION PRESENTED

Whether petitioner was properly convicted of a mis demeanor violation of 18 U.S.C. 111(a)(1) on the basis of his physical resistance to being handcuffed and his re peated attempts, while making verbal threats, to spit on officers after sticking his fingers down his throat and vomiting.

In the Supreme Court of the United States

No. 08-1486

CHRISTIAN GAGNON, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

 

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-15a) is reported at 553 F.3d 1021.

JURISDICTION

The judgment of the court of appeals (Pet. App. 16a- 17a) was entered on January 29, 2009. The petition for a writ of certiorari was filed on April 29, 2009. The ju risdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a bench trial before a magistrate judge in the United States District Court for the Eastern Dis trict of Michigan, petitioner was convicted of simple as sault by forcibly resisting, impeding, and interfering with federal agents, in violation of 18 U.S.C. 111(a)(1). He was sentenced to six months of imprisonment. The court of appeals affirmed. Pet. App. 1a-15a.

1. At the time of petitioner's crime, Section 111 pro vided:

(a) IN GENERAL.-Whoever-

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any [designated federal officer or employee] while engaged in or on account of the performance of official duties; or

(2) forcibly assaults or intimidates any person who formerly served as a [designated federal offi cer or employee] on account of the performance of official duties during such person's term of ser vice,

shall, where the acts in violation of this section con stitute 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 impris oned not more than 8 years, or both.

(b) Enhanced penalty.-Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C. 111. In 2008, Congress amended Section 111 by deleting from the penalty provision in subsection (a) the phrase "in all other cases," and substituted the phrase "and where such acts involve physical contact with the victim of that assault or the intent to commit another felony." See Court Security Improvement Act of 2007, Pub. L. No. 110-177, § 208(b), 121 Stat. 2538.

2. In June 2006, petitioner, a Canadian citizen, was on a boat at a marina in St. Clair Shores, Michigan. Af ter a security guard reported that petitioner had immi gration problems, Border Patrol Agents arrived at the marina to interview petitioner. Petitioner, who had been drinking, went into the cabin of the boat to get his pass port. At one point, petitioner, who had been sitting down, suddenly "jump[ed] up" which caused one agent to believe that petitioner was about to "attack and push" another agent. Two agents sought to restrain petitioner and tried to get him to sit down so they could handcuff him, but petitioner physically resisted the officers' ef forts to force him to sit down. Pet. App. 2a-3a; 10/10/06 Tr. 10, 34-35 (Tr.).

After finally subduing and handcuffing petitioner, the agents took petitioner off the boat, put him in the back of their vehicle, and took him to a Border Patrol station. Enroute, petitioner, seated in the back seat, put his fingers down his throat and repeatedly vomited. He then spat at the agents while yelling obscenities at them and threatening that he was going to kill them. Pet. App. 3a; Tr. 39-42.

3. Petitioner was issued a citation for violating Sec tion 111(a)(1). The parties entered into a stipulation by which they agreed that the case would "proceed as a petty offense constituting a Class B misdemeanor," which limited petitioner's potential punishment to im prisonment for six months and a fine of $5000 and re lieved the government of the obligation to file an infor mation, indictment, or complaint. Petitioner also con sented to trial and sentencing on the misdemeanor charge before a magistrate judge. Tr. 4-5; Stipulation to Proceed as Petty Offense; Pet. App. 3a.

After hearing testimony from Border Patrol Agents and petitioner, the magistrate judge found defendant "guilty of the offense charged." Tr. 98. The magistrate judge specifically found that "the element of forcible resistance, forcible impeding, forcible interference is satisfied in this case." Ibid. The district court affirmed the conviction. Pet. App. 18a-19a.

4. The court of appeals affirmed. Pet. App. 1a-15a. At the outset, the court agreed with the other courts of appeals to address the issue that, pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), Section 111's prohi bition and punishment provisions "must be treated as creating three separate crimes," which are: "(1) 'simple assault' (misdemeanor); (2) violations of § 111 that either involve a deadly or dangerous weapon or result in bodily injury (aggravated felony); or (3) 'all other cases' (fel ony)." Pet. App. 6a.

The court rejected petitioner's argument that any conviction under the statute for "resist[ing], oppos[ing], imped[ing], intimidat[ing], or interfer[ing] with" a fed eral officer, 18 U.S.C. 111(a)(1), "requires a finding of actual common-law 'assault,'" Pet. App. 8a. The court of appeals acknowledged that the Ninth Circuit had adop ted petitioner's reading of the statute in United States v. Chapman, 528 F.3d 1215 (2008). The court rejected that reading, however, because it "makes a great deal of what § 111 does say entirely meaningless" and would therefore violate the canon against construing a statute in a way that renders words superfluous. Pet. App. 10a (citing Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253 (1992)). The court noted that Congress listed five prohibited actions beyond assault in the text of Sec tion 111(a)(1), and one prohibited act beyond assault (interfering with an officer) in Section 111(a)(2). Id. at 11a. The court concluded that any ambiguity that arose when, in 1994, Congress introduced the distinction be tween "simple assault" and "all other cases" in Section 111's penalty provision was "no excuse to ignore what [the prohibited conduct language] plainly does say." Ibid.

The court also rejected what it termed a "hyper-lit eral" interpretation of Section 111 under which, of the six forms of conduct prohibited in Section 111(a)(1), only "assault" could qualify as a misdemeanor, whereas the other five types of conduct always come within the "all other cases" category subject to punishment as a felony. Pet. App. 11a n.5. The court regarded that interpreta tion, under which an assault on an officer could be a mis demeanor but passively resisting arrest would always be a felony, as "lead[ing] to absurd results" that Congress could not have intended. Ibid.

The court concluded that the "better reading" of Sec tion 111 was that Congress used the phrase "simple as sault," which was added when Congress amended the statute in 1994, as "a term of art that includes the forc ible performance of any of the six proscribed actions in § 111(a) without the intent to cause physical contact or to commit a serious felony." Pet. App. 12a-13a. The phrase "all other cases," by contrast, "covers the com mission of these same violations plus the intent to com mit a felony or resulting physical contact from forcible (and thus intentional) action." Id. at 13a.

Applying that interpretation to the facts of this case, the Sixth Circuit concluded petitioner violated the stat ute when he acted "defiantly while being detained and taken away." Pet. App. 14a. In light of its conclusions, the court declined to resolve the government's alterna tive argument that petitioner's conduct of spitting his vomit at Border Patrol Agents while shouting that he would kill them would, in any event, qualify as a "simple assault." Id. at 14a n.7 (citing Govt. C.A. Br. 14).

ARGUMENT

Petitioner contends (Pet. i, 3-9) that the govern ment's evidence and the district court's findings were insufficient to support his misdemeanor conviction for violating 18 U.S.C. 111(a)(1). That contention lacks merit and would not, in any event, warrant this Court's review. Although the court of appeals' construction of Section 111 does conflict with that of the Ninth Circuit in United States v. Chapman, 528 F.3d 1215 (2008), that conflict is of little continuing relevance because Con gress amended Section 111 in 2008, after the conduct at issue here. The Court should wait to see whether a simi lar conflict will develop with respect to the amended statute and, if so, to resolve it in the context of a case involving the proper construction of the statute as amended. In any event, petitioner would not prevail even under the Ninth Circuit's approach. The evidence at trial showed that petitioner repeatedly spit vomit at the Border Patrol Agents while threatening to kill them. That conduct qualifies as a "simple assault," even as suming that it is necessary for the government to prove an assault in order to convict petitioner under Section 111. Accordingly, this Court's review of petitioner's mis demeanor conviction under a now-superseded statute is unwarranted.

1. The court of appeals characterized the question presented for its determination as "how to distinguish between cases involving 'only simple assault' from 'all other cases.'" Pet. App. 7a. That question is of now ex ceedingly negligible importance in light of Congress's 2008 amendment to Section 111. In that amendment, Congress deleted the phrase "in all other cases" from the statute and thereby eliminated the statutory dichot omy the court of appeals construed. In its place, Con gress inserted the phrase "where such acts involve phys ical contact with the victim of that assault or the intent to commit another felony." Court Security Improve ment Act of 2007, Pub. L. No. 110-177, § 208(b), 121 Stat. 2538. In light of that change to the statutory text, the precise question addressed by the court of appeals in this case can only arise in the small number of prose cutions that might still be pending involving conduct that pre-dated the effective date of the 2008 amendment. Because the precise issue presented here has arisen only infrequently in the past, as evidenced by the extremely narrow circuit split on the issue, this Court's review of the proper construction of the now-superseded version of Section 111(a) is not warranted.

It is, of course, possible that a similar conflict could develop with respect to the construction of Section 111(a) as amended. Although the court of appeals stated that the amendments did not "directly resolve" the issue before it, the court acknowledged that "[t]he amended version of the statute is not before the Court in this case." Pet. App. 7a n.2. Thus, any commentary on the amendment and what significance it might have for con struing Section 111(a) was dictum. This Court should wait to see if a conflict does arise and, if so, to resolve the issue in a case involving the new statutory language.

2. Several factors support the court of appeals' in terpretation of Section 111(a)(1) to encompass violations that do not involve assault. Section 111(a)(1) identifies six categories of prohibited conduct: assault and five non-assaultive types of behavior-i.e., where the defen dant forcibly "resists, opposes, impedes, intimidates, or interferes with" the federal officer. 18 U.S.C. 111(a)(1). The commas between the verbs and the disjunctive "or" suggest that Congress intended each category of prohib ited conduct to be separate and independent of the oth ers. See Horne v. Flores, 129 S. Ct. 2579, 2597 (2009). And the last five types of conduct are not necessarily sub-categories of assault. Whereas the term assault implies conduct that the suspect initiates against the officer, the other five terms can be satisfied by actions taken by the suspect in response to conduct initiated by the officer.

In addition, one of the statutory predecessors to Sec tion 111 made it an offense to "forcibly resist, oppose, impede, intimidate, or interfere with any [designated official] while engaged in the performance of his official duties, or [to] assault him on account of the performance of his official duties." Act of May 18, 1934, ch. 299, § 2, 48 Stat. 781 (18 U.S.C. 254 (1940)). As this Court recog nized, that statute was chiefly directed at non-assault crimes and clearly "outlawed more than assaults." United States v. Feola, 420 U.S. 671, 682 n.17 (1975); United States v. Ladner, 358 U.S. 169, 176 (1958) (stat ing that former statute "makes it unlawful not only to assault federal officers engaged on official duty but also forcibly to resist, oppose, impede, intimidate or interfere with such officers. Clearly one may resist, oppose, or impede the officers or interfere with the performance of their duties without placing them in personal danger"). As an example of a non-assault "denounced by the stat ute," Ladner mentioned an act of locking a door to a house to prevent officers from arresting a person inside. Ibid. And Congress made only a technical change when, as part of the codification of Title 18 in 1948, it placed assault at the beginning of the statute ahead of the non- assault categories of prohibited conduct. Id. at 176 n.4 (discussing Reviser's Notes to Act of June 25, 1948, ch. 645, 62 Stat. 688, which recodified provision as Section 111). Not surprisingly, courts upheld non-assault crime convictions under Section 111(a)(1). See, e.g., United States v. Johnson, 462 F.2d 423, 425 (3d Cir. 1972) (up holding conviction under Section 111(a) for "willfully resisting, opposing, impeding and interfering with fed eral officers," despite jury's acquittal of defendant on charge of "assault" under that statute), cert. denied, 410 U.S. 937 (1973).

The alteration of Section 111's penalty structure in 1994 introduced the phrase "simple assault" to encom pass misdemeanor violations, but Congress gave no indi cation that it intended to cut back on the substantive reach of the statute. Before 1994, Section 111 punished all offenses by up to three years of imprisonment, except for offenses with a deadly or dangerous weapon, where the penalty was up to ten years. In 1994, Congress amended Section 111(a) by providing that the penalty for acts constituting "simple assault" would be imprison ment for not more than one year, and "all other cases" would be subject to imprisonment up to three years. Congress did not provide a definition of "simple as sault." There is no indication, however, that Congress intended the 1994 amendment's creation of a class of misdemeanor violations to narrow Section 111 by elimi nating all non-assaultive "resist[ing], oppos[ing], imped [ing], intimidat[ing], or interfer[ing] with" a federal offi cer from the statute's scope.

3. Further review by this Court is also unwarranted to resolve any claim of a conflict. Petitioner's reliance on a decision of the Tenth Circuit is misplaced. And there is no reason to believe that petitioner would pre vail under the construction of Section 111(a) adopted by the Ninth Circuit in Chapman. Under Chapman, the government would have to establish an assault, but peti tioner would not prevail under that standard because, as the Ninth Circuit has held, spitting at federal officers in an offensive manner does qualify as "simple assault." United States v. Lewellyn, 481 F.3d 695, 697, cert. de nied, 128 S. Ct. 154 (2007).

a. Petitioner urges (Pet. 5-7) that the decision below conflicts with the Tenth Circuit's decision in United States v. Hathaway, 318 F.3d 1001 (2003). That case, however, did not involve the issue presented here. Ra ther, the Tenth Circuit held that the defendant's convic tion for violating Section 111 was punishable only as a misdemeanor instead of a felony because the indictment and the jury instructions failed to distinguish between simple assault and felony assault. Because the indict ment failed to allege all of the elements of felony as sault-i.e., "actual physical contact, a deadly or danger ous weapon, bodily injury, or the intent to commit mur der or [another] felony," id. at 1008-and to provide the defendant with sufficient notice that he needed to de fend against a felony charge, the defendant could not be convicted of felony assault, id. at 1009-1010. The court remanded with directions that the judgment be amended to reflect the defendant's conviction for a misdemeanor. Id. at 1010. Because the case involved what was admit tedly a "simple assault," id. at 1004, 1010, the court did not need to resolve how Section 111(a) would apply to conduct constituting only one of the five non-assault cat egories of Section 111(a).

b. Although the court of appeals acknowledged a conflict between its construction of Section 111(a) and that of the Ninth Circuit in Chapman, see Pet. App. 10a, it is far from clear that petitioner would prevail even under Chapman. As the government argued below, see Govt. C.A. Br. 13-14, petitioner's conduct of spitting his vomit at Border Patrol Agents while threatening to kill them does constitute simple assault, and thus would sup port petitioner's misdemeanor conviction even if assault is an essential element of every Section 111(a) violation.

In Chapman, the Ninth Circuit overturned a misde meanor conviction under Section 111(a) because the de fendant's "nonviolent civil disobedience did not consti tute a simple assault." 528 F.3d at 1216. The court of appeals adopted the argument, advanced here by peti tioner, that a defendant can be convicted of a misde meanor under Section 111(a) only for "assaults that do not involve physical contact" and that a defendant charged with "resisting, opposing, impeding, intimidat ing or interfering * * * could not be convicted unless his conduct also amounted to an assault." Id. at 1219. To be convicted of a felony under the "all other cases" prong, the court concluded, also "require[s] at least some form of assault." Id. at 1221. The Ninth Circuit held that Chapman's misdemeanor conviction could not stand under the court's interpretation of Section 111(a) because the defendant "did not threaten or attempt to injure the officers in any way-he merely stood still, 'tensing' his body." Id. at 1219.

In contrast to the facts of Chapman, petitioner's con duct in this case did qualify as "simple assault" as the Ninth Circuit has construed that phrase. Far from sim ply "disobeying [the officer's] orders," as happened in Chapman, 528 F.3d at 1222, petitioner threatened to kill the Border Patrol Agents while repeatedly attempting to spit vomit at them. That conduct easily satisfies the requirements of a "simple assault" under Section 111(a). Indeed, even without the aggravating factors of the ver bal threat or vomit intermingled with the spit, the Ninth Circuit has held that intentionally and offensively spit ting on another person qualifies as a "simple assault" under the theory of assault as an attempted battery. Lewellyn, 481 F.3d at 697. See also United States v. Frizzi, 491 F.2d 1231, 1232 (1st Cir. 1974) (upholding conviction under 18 U.S.C. 111(a) based on spitting). Lewellyn sustained a conviction under 18 U.S.C. 113(a) for "simple assault" based on an incident in which the defendant spat in the face of another on the grounds of a Veterans Administration hospital. 481 F.3d at 696. Although the court was construing a different statute, the relevant phrase-"simple assault"-is the same as appears in Section 111(a). Indeed, in Hathaway, on which petitioner relies, the Tenth Circuit expressly re lied on the courts' construction of "simple assault" in Section 113 to guide interpretation of Section 111(a). 318 F.3d at 1008.

The magistrate judge did not expressly rule on whe ther defendant's conduct constituted "assault" because it found that petitioner's conduct violated other prohibi tions in Section 111(a). Tr. 98. Likewise, the Sixth Cir cuit declined to rule on the government's alternative argument that, if an "assault" is a necessary element of any Section 111(a) conviction, the evidence demon strated an assault in this case. See Pet. App. 14a n.7. Nevertheless, as demonstrated above, petitioner's mis demeanor conviction would very likely be upheld even under the Ninth Circuit standard for which he advo cates. Because the prospect that petitioner would obtain any benefit from a favorable ruling by this Court on his legal contentions is remote, further review by this Court is unwarranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
LANNY A. BREUER
Assistant Attorney General
THOMAS E. BOOTH
Attorney

AUGUST 2009