882 F.3d 1325
10th Cir.2018Background
- October 15, 2015 roadside incident: Aaron Jereb (under the influence of drugs) got into a physical confrontation with Forest Service Officer Darren Schiedel and the officer’s K‑9, Livo; Jereb was arrested after being bitten by the dog and subdued.
- Indictment charged multiple counts including violating 18 U.S.C. § 111(a)(1), (b) (forcibly assaulting/resisting/opposing/impeding/intimidating/interfering with a federal officer with bodily injury), harm to a law‑enforcement animal, and drug offenses.
- At trial the jury convicted Jereb of § 111(b) (finding bodily injury), possession of methamphetamine and heroin, and drug paraphernalia; acquitted on the police‑animal charge and marijuana possession.
- Key trial dispute: jury instructions for § 111 — whether the jury must be unanimous as to which statutory verb (assault, resist, oppose, impede, intimidate, interfere) was proven, and whether “assault” is an essential element that must be proved for any § 111 conviction.
- Jereb proposed and the court gave a unanimity instruction requiring juror agreement on which of the listed acts was proved; Jereb did not request a separate instruction that assault is an element of every § 111 conviction.
- At sentencing the district court used the aggravated‑assault Guideline, classified Jereb as a career offender, imposed 72 months, and ordered mental‑health treatment as a special condition of supervised release; Jereb appealed the conviction and the mandated mental‑health condition.
Issues
| Issue | Jereb's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether a § 111 conviction requires proof of an assault as an element when charged under any of the statute’s verbs (resist, oppose, impede, intimidate, interfere) | The jury instruction omitted the required assault element; because the verdict form did not show assault, Jereb is entitled to a new trial (plain‑error review) | Jereb invited the instruction given by proposing and approving a unanimity instruction; invited‑error doctrine bars appellate review | Majority: invited‑error doctrine applies because Jereb proposed/approved the instruction that contradicted his present position; conviction affirmed. Dissent: would apply plain‑error review and reverse. |
| Whether the unanimity instruction given was legally defective | (part of same claim) Trial instruction undermined the assault‑element requirement and produced non‑unanimous verdict as to assault | Instruction followed parties’ joint wording and circuit practice at the time; defendant endorsed it | Majority: defendant invited any instructional error by proposing and endorsing the instruction; no reversible error. |
| Whether the district court abused discretion by imposing mandatory mental‑health treatment as a special condition of supervised release | Mental‑health condition was not adequately connected to § 3583(d) factors and was unsupported by PSR | District court observed defendant, relied on PSR history of violent incidents and courtroom demeanor; condition is authorized by statute and Guidelines | Affirmed: district court provided generalized reasons (history, temperament, violent history) and did not abuse discretion. |
| Whether appellate review should reach plain‑error merits despite forfeiture | Jereb says plain error occurred and prejudiced his substantial rights because jury did not find assault | Government says invited error precludes plain‑error review | Majority: invited error applies; do not reach plain‑error merits. Dissent: would reach plain error and would reverse § 111(b) conviction. |
Key Cases Cited
- United States v. Wolfname, 835 F.3d 1214 (10th Cir. 2016) (held that proof of assault is required for a § 111(a)(1) conviction)
- United States v. Hathaway, 318 F.3d 1001 (10th Cir. 2003) (interpreting § 111 and discussing elements of related convictions)
- United States v. Cornelius, 696 F.3d 1307 (10th Cir. 2012) (applied invited‑error doctrine where defendant endorsed trial instruction and later challenged it on appeal)
- United States v. LaHue, 261 F.3d 993 (10th Cir. 2001) (invited‑error discussion where defendants sought and used favorable trial rulings and later complained on appeal)
- United States v. Barajas, 331 F.3d 1141 (10th Cir. 2003) (upheld mental‑health condition where defendant had a long record of violent incidents)
- United States v. Sturm, 673 F.3d 1274 (10th Cir. 2012) (defendant proffered challenged jury instruction and appellate review was barred)
- United States v. Martinez‑Torres, 795 F.3d 1233 (10th Cir. 2015) (district courts must give generalized reasons for special supervised‑release conditions)