By Joshua P. Bussen
Issues Raised by the Defendant
Today, in U.S. v. Briley, the Fourth Circuit addressed two issues. First, whether assault is a required element of the “physical contact” provision of 18 U.S.C. § 111; and second, whether Federal Rule of Evidence 404(b) excludes prior “bad act” evidence where the two acts in question only share some similarities.
The Events of January 12, 2012
On January 12, 2012, two plain-clothes Park Police officers were patrolling the Washington Sailing Marina in Alexandria, Virginia. The Marina is a recreational area of the Dangerfield Island National Park where some have taken the “recreational” title to the limit; the Marina is a known hot spot for “sexual encounters.” While on patrol, the officers observed two individuals—one later determined to be the defendant—beginning to partake in the Marina’s reputed “recreational” activity in the front seat of an SUV. The officers called for backup and two officers in police marked tactical attire arrived and approached the vehicle.
Upon reaching the SUV, officers instructed the men to exit the vehicle. The defendant’s recreational companion quickly complied; the defendant would not go so easily. While attempting to remove the defendant from the vehicle, the defendant struck one of the officers in the arm, side, and lower back. The officer sustained various lower back injuries from the incident; his casualties would not be the worst. Another officer began striking the defendant in an attempt to loosen his grip in the SUV. The defendant returned a barrage of kicks to the officer’s abdomen; the kicks would later lead to impairment of the officer’s pancreas and the removal of his gallbladder. Eventually the defendant agreed to exit the vehicle, but again began resisting arrest. The officers eventually forced handcuffs onto the defendant, ending the tussle.
Later, in March, 2012, the defendant was again arrested for committing sexual acts in the same Marina parking area; fortunately for the officers, he did not again resist arrest.
18 U.S.C. § 111 and Fed. R. Evid. 404(b)
Under 18 U.S.C. § 111, whoever “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any [federal officer] 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 where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.”
Under Fed. R. Evid. 404(b), “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character,” however, such evidence “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
The Law in This Case
On appeal, the Fourth Circuit held that assault is not an element of the “physical contact” portion of § 111. The court reasoned that requiring assault as an element of the “physical contact” portion of § 111 would: (1) render five of the six words within the statute inoperative; (2) would stray from the congressional intent of protecting federal officers; (3) would leave federal officials without protection for carrying out federal functions; and (4) produce an “absurd result,” allowing individuals to impede, intimidate, and interfere with federal officers so long as they did not commit assault.
Conversely, the court found that the 404(b) evidence came far to close to pure propensity evidence. The March arrest of defendant was similar to the January arrest in that the defendant was found engaging in obscene public acts in the same general area and in the same SUV. However, the defendant did not resist arrest on the March occasion. The court felt that this March incident was not only too dissimilar to the January incident to be “plan” or “intent” evidence, but also unnecessary in a case where multiple officers testified as to the defendant’s actions.
The Fourth Circuit’s Determination
The Fourth Circuit affirmed the holding of the lower court. Despite finding the 404(b) evidence should have been excluded, the overwhelming evidence against the defendant in this case rendered the admission of improper evidence harmless error.
