United States v. Wolfname, 2016 U.S. App. LEXIS 15778

Background

Officer Blaine Parnell (Bureau of Indian Affairs) attempted to arrest Jakota Wolfname on tribal warrants; Wolfname fled and a scuffle followed after both went over a barbed-wire fence.
During the struggle Parnell handcuffed Wolfname; Wolfname admitted grabbing Parnell’s hand and pulling it toward Parnell’s wrist to free his neck, claiming he reacted to being choked and did not intend to injure.
Parnell testified he used a headlock, that Wolfname grabbed his thumb only after release, and that he suffered a thumb ligament injury per medical testimony.
A grand jury charged Wolfname under 18 U.S.C. § 111(a)(1) and (b) with "knowingly and forcibly assaulting, resisting, and interfering with" a federal officer; at trial the jury convicted on resisting/interfering but explicitly declined to find assault or bodily injury on the verdict form.
Wolfname did not object at trial to the jury instruction omitting assault as an element of resisting/interfering; on appeal he argued plain error because Tenth Circuit precedent (Hathaway) requires assault (an attempt or threat to injure) to be an element of any § 111(a)(1) conviction.
The district court sentenced Wolfname to 24 months; the Tenth Circuit reversed and remanded, finding the instructional omission was plain error that affected substantial rights and the fairness of the trial.

Issues

Issue	Wolfname’s Argument	Government’s Argument	Held
Whether assault (attempt/threat to injure) is an element of every § 111(a)(1) conviction	Hathaway requires that any § 111(a) offense be defined by the type of assault involved, so assault is an element	Hathaway addressed only assault, not resisting/impeding/etc.; other circuits disagree and the 2008 amendment negates Hathaway’s reach	Court held Hathaway controls in this circuit: assault is an element of any § 111(a)(1) conviction
Whether the district court’s failure to instruct on assault was plain error (unpreserved)	Error was plain under Hathaway and the 2008 amendment codified Hathaway; omission likely changed outcome given jury refused to find assault	Circuits are split; plain error inappropriate because issue unsettled	Error was plain because Hathaway is well-settled in the Tenth Circuit
Whether the instructional error affected substantial rights	Jury’s rejection of assault and bodily-injury findings shows a reasonable probability of a different outcome if properly instructed	Jury found forcible conduct; evidence of injury existed, so omitted element was effectively proved	Error affected substantial rights because evidence on assaultive intent was disputed and jury declined to find assault
Whether error undermined fairness, integrity, or public reputation of proceedings (fourth prong)	Because evidence on assault element was neither overwhelming nor uncontroverted, failure to instruct undermined trial fairness	Even if error occurred, other findings (force, injury) support conviction so integrity unaffected	Court held fourth prong met; reversal warranted and conviction vacated with remand

Key Cases Cited

United States v. Hathaway, 318 F.3d 1001 (10th Cir.) (§ 111(a) misdemeanors/felonies defined by type of assault; assault is an element)
United States v. Chapman, 528 F.3d 1215 (9th Cir.) (interpreting Hathaway as requiring assaultive conduct for § 111 convictions)
United States v. Davis, 690 F.3d 127 (2d Cir.) (read Hathaway to require proof of assaultive conduct for misdemeanor § 111(a) resisting)
United States v. Williams, 602 F.3d 313 (5th Cir.) (concluded § 111(a)(1) resisting need not require proof of assault)
Jones v. United States, 526 U.S. 227 (1999) (elements vs sentencing factors framework governing indictments and jury proof)
United States v. Rosales-Miranda, 755 F.3d 1253 (10th Cir.) (defines reasonable-probability standard for showing effect on substantial rights)
Johnson v. United States, 520 U.S. 461 (1997) (explains when failure to instruct requires reversal where omitted-element evidence is overwhelming)