United States v. Jay Briley, 770 F.3d 267

In January 2012 at the Washington Sailing Marina (a National Park), Park Police officers observed Jay Briley and another man preparing to engage in sexual activity inside Briley’s SUV.
Four officers approached; Briley resisted removal from the vehicle, engaged in a violent struggle, struck and kicked officers, and was ultimately handcuffed and arrested. Officers suffered injuries, including pancreatitis for Officer Brancato.
A grand jury charged Briley with three counts under 18 U.S.C. § 111 (two felonies alleging physical contact; one misdemeanor) and one count of disorderly conduct under 36 C.F.R. § 2.34(a)(2). He was convicted on all counts and sentenced to 78 months’ imprisonment plus restitution.
The district court admitted, over defense objection under Fed. R. Evid. 404(b), evidence of a March 2012 subsequent arrest of Briley at the same Marina for similar public sexual activity (no resistance at arrest) to prove recklessness for the disorderly-conduct count.
On appeal Briley argued (1) § 111 requires an assault element for the charged felonies/misdemeanor and (2) admission of the March 2012 act was improper propensity evidence under Rule 404(b).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 111(a)’s “physical contact” felony and the misdemeanor require a distinct assault element	Briley: § 111’s misdemeanor and the physical-contact felony require an assault element; convictions that omit assault are invalid	Government: § 111(a)(1) lists multiple disjunctive verbs (forcibly assaults, resists, opposes, impedes, intimidates, interferes); any one can satisfy the statute’s threshold acts for the graded penalties	Court: Affirmed government — § 111’s six verbs are all meaningful; assault is not a required separate element for the physical-contact felony or the misdemeanor when other forcible acts are proved
Admissibility under Fed. R. Evid. 404(b) of March 2012 subsequent arrest to prove recklessness for disorderly conduct	Briley: March arrest was propensity evidence with little probative value and substantial risk of unfair prejudice; should be excluded	Government: The subsequent act was relevant to intent/recklessness element and admissible under Rule 404(b)	Court: Admission was error (too close to propensity), but error was harmless given overwhelming January evidence; conviction stands

Evans v. United States, 504 U.S. 255 (standard for viewing evidence in light most favorable to the government)
Feola v. United States, 420 U.S. 671 (§ 111 protects both physical safety and functional integrity of federal officers)
Apprendi v. New Jersey, 530 U.S. 466 (elements increasing punishment must be found beyond a reasonable doubt)
Jones v. United States, 526 U.S. 227 (same principle re: sentencing elements)
United States v. Campbell, 259 F.3d 293 (discussing § 111(b)’s enhanced penalties)
United States v. Williams, 602 F.3d 313 (follows view that § 111 covers the six disjunctive acts)
United States v. Davis, 690 F.3d 127 (Second Circuit’s approach requiring simple-assault for misdemeanor — contrasted with facts here)
United States v. Lespier, 725 F.3d 437 (Rule 404(b) is inclusive; admissibility principles)
Huddleston v. United States, 485 U.S. 681 (standards for admitting other-act evidence)
Kotteakos v. United States, 328 U.S. 750 (harmless-error standard for nonconstitutional errors)