*4 drinking. that he had been HULL, Fallen admitted Circuit Before TJOFLAT report, this in his PROPST*, Larson mentioned Judge. District Judges, * imprisoned not fined under this title or Propst, U.S. District B. Honorable Robert Alabama, both, Judge year, the Northern District of and in all for than one or more sitting by designation. cases, this title or be fined under other 111(a)(1) years, or more than three provides: imprisoned 1. 18 U.S.C.
Whoever both. assaults, resists, (1) opposes, im- forcibly intimidates, interferes with pedes, or ground, Fallen asks that his first 2. As relief on this designated in section 1114 of judg- court to enter we direct the district engaged account of the while in or on title remaining acquittal. As to ment of duties; performance of official that, whether con- grounds, contends Fallen collectively, individually he should sidered Shall, in violation of this where the acts granted a new trial. assault, only simple constitute section wherein he described Fallen as “very sentence, Just before he finished his how ever, drunk” and “confused.” repeated Fallen that he had a gun and would shoot and kill agents if a.m., phoned At 5:17 Agent Larson Mi- did not property. leave his kosky in regional the Jacksonville Secret Service office and him asked to follow up In the repeated threats, face of Fallen’s phone Mikosky on Fallen’s phoned call. agents went back to their ear and Fultz, office, Agent also in the Jacksonville drove out of the They immediate area.4 requested criminal that he run a histo- then went to neighbor’s house and tele- ry check on Fallen. When Fultz ran the phoned Fallen, explaining they just check, he prior gun-related found three wanted to talk himto about complaint incidents: a possessing conviction for he had made. Mikosky Fallen told that he weapon concealed an arrest for would not come out of the house because possessing weapon in concealed agents believed the would arrest him. and a conviction making for a false state- agents When the told him did ment in gun purchase connection awith him, not intend to arrest agreed hand, With this information Mi- talk agents to the through the solid front kosky and Fultz advised local police of the Mikosky door. him told that arrangement *5 and, a.m., situation at approximately 11:00 however, was unacceptable, because the went to Fallen’s house to investigate the agents feared that might Fallen shoot reported threat.3 they them if reentered property. his Al- Mikosky When and Fultz arrived at though replied, Fallen “I won’t a have t house, they Fallen’s knocked on his fron gun,” Mikosky suggested that open Fallen door. A male voice house, from inside the the solid front door and stand behind the identified agents the at trial Fallen’s, as screen door agents so the could see his out, called ‘Who is it?” Mikosky replied hands. Fallen agreed, but had to be re- that he was with the Secret Service and minded during ensuing the interview to looking was for responded, Fallen. Fallen keep sight. his hands in in what Mikosky described at trial as a agents When the returned to Fallen’s “very “very loud” and angry” voice, that house, son, Fallen told them that his who gun had a and would shoot agents the if had visited him days ago, seven had be- they did not property. leave his The come incensed he saw a bearing card agents backed away from the door and picture a of President Clinton and the Agent Mikosky identified again, himself Lady. First Fallen’s son stated that he was saying, Agent “This is Mikosky with the going to Washington, D.C. to “blow [the Service, Secret you called us.” At that head President’s] off with a shotgun.” point, Mikosky looked at the window to the During interview, the which lasted five right of the door and noticed someone minutes, appear Fallen did to be intox- pulling back the curtain. Although he icated; speech his was clear and articulate. could there, not see who was Mikosky pointed said, to his badge and Fallen, “Mr. Two later, and one-half weeks on Octo- we’re Service, the you 22, Secret 1998, called us.” ber agents returned to Fall- Mikosky testified trial at that he waited 4. Fearful that he would upon, indeed be fired nearly six hours to Agent contact Fallen Mikosky because he kept drew his sidearm but it was appeared aware that Fallen to have carefully been concealed while he retreated to the a.m.; heavily intoxicated Mikosky at 5:05 Agent car. Fultz had his hand on his side- hoping arm, up” by Fallen would “sober "fanny pack” which was in a contained agents time the arrived. he wore around waist. his so, any intention- ability to do includes arrested a warrant house with en’s give of force as would 29, display District of such a al Middle him. On October expect Fallen on one to fear or immediate jury reason grand indicted victim Florida Renfro, officer vio- assaulting bodily harm.” United States federal count of 111(a)(1). (5th Cir.1980) Fallen’s 497, (emphasis of 18 U.S.C. lation 6, At the January added).6 willfully on threat- began Clearly, trial case, Fallen’s injury upon of the Government’s close to inflict ened judgment for attorney moved the court that he agents when he stated would shoot and, court took after the acquittal totality gun. with a Under them advisement, without rested under circumstances, reasonably motion were agents jury returned calling witnesses. repeatedly were being afraid shot— April January 7. On verdict on guilty possibly angry-sounding, threatened mo- Fallen’s court the district denied in- prior convictions felon with intoxicated and sen- acquittal, judgment for a tion Moreover, agents volving firearms. Fallen, had been detained who tenced that Fallen could see them knew year su- and one custody, to time served range, as could hear shooting within pervised release.5 mov- the door and saw a hand him behind ing the window curtain.
II.
however,
brief,
Fallen contends in his
A.
at trial did not establish
the evidence
he “did not en-
forcible assault because
for reversal
ground
first
Fallen’s
any physical
contact with the
gage
insufficient
at trial was
the evidence
is that
Moreover, because he did not
agents.”
forcible assault
a conviction
to sustain
for
*6
...
“display any weapons
[t]here
no
111(a)(1). Questions
18 U.S.C.
under
Fallen
presented
indicated
evidence
that
pro
the evidence
sufficiency of
the
about
ability to harm
apparent
the
the
had
de novo. Unit
at trial are reviewed
duced
added.)
agents.” (emphasis
(11th
628,
Keller,
F.2d
632
v.
916
ed States
Cir.1990).
all evidence
We must view
and others have held that
This circuit
United
to the
light most favorable
the
is not
actual
contact
“proof
physical
of
States,
inferences
with all
reasonable
§ 111.” United States
to violate
required
the
uphold
To
in its favor.
Id.
drawn
(6th
274,
Chambers,
277
Cir.
195 F.3d
v.
motion for
court’s denial
district
Hernan
1999);
States v.
see also United
jury’s ver
the
acquittal
of
and
judgment
Cir.1991)
(11th
1569,
dez,
1577
F.2d
921
dict,
only find that a reasonable
need
we
(“[t]he
by
...
min
may
violated
statute
that the
have concluded
fact finder could
contact,
without the
or even
physical
imal
guilt
the defendant’s
established
contact”) (internal
any physical
of
presence
Id.
beyond a reasonable doubt.
omitted);
v. Fer
States
citations
(11th
1031,
nandez,
Cir.
F.2d
1035
837
has been defined
Forcible assault
Mathis,
1988)
v.
579
(citing United States
inflict
attempt to
“any willful threat
as
(7th Cir.1978),
415,
propo
the
for
F.2d
418
of another
injury upon the
bodily
person
that
accused
[the]
that “evidence
sition
apparent present
an
coupled with
Prichard, 661
City
28, 1999,
v.
6.
In Bonner
violated the terms
July
Fallen
5. On
of
banc),
1206,
Cir.1981) (en
this
sentenced
and was
supervised
his
release
of
binding
all
precedent
deci-
adopted as
court
appears that
imprisonment.
It
ten months'
to
Circuit handed down
former Fifth
sions of the
longer incarcerated.
is no
Fallen
prior October
to
quantum
some
used
or threat of
and,
force
ened serious
injury
by his
support
force is sufficient to
conviction un
actions, gave
words
agents
and
the
reason-
111”).
argues
der section
Fallen
that be
able cause to
injury
fear such
or death.
cause these cases were decided before sec Thus,
the fact that Fallen never made
tion
was amended
the Violent physical
agents
contact with the
does
Crime Control Act of
to
add the
degree
lessen the
of the assault.
assault,
simple
lesser included offense of
That Fallen did not “display” a
they
longer good
are no
law to the extent
weapon
agents
so
the
could see it is of
allow mere threats of force to
moment,
no
as
“present
Fallen’s
apparent
Now,
constitute a forcible assault.
Fallen
ability” to harm
agents
was established
avers, ah threats
unaccompanied
of force
repeated
his
assertion that he had a
by physical contact must
treated as
gun and
willing to
use it. While we
simple assaults under
section
can find no case in this
addressing
circuit
no case
for
proposition,
cites
law
this
whether
victim
of a forcible
post-1994
we find no
assault
Eleventh Circuit de
actually
must
weapon
see
addressing
cisions
with
the issue.
which
Other cir
rejected
threatened,
cuits have
overly
Fallen’s
we
guided by
broad
are
assault,
simple
however,
definition of
reasoning set forth in United
v.
have held instead that
the more narrow Crouthers,
(10th Cir.1982).
At
simple
common
assault is
briefcase for
money
defined as “a willful
attempt
inju
gun.
and loaded
inflict
ry upon
person
another,
He
up
or ...
then set
a meeting
with the unwit
injury
threat
to inflict
upon
Salski,
ting
who had
keys
bank
which,
another
when coupled with
ap
facility,
Trimm
arranged
for
to accost
parent present ability, causes a reasonable
them
as
both
left
apart
Crouthers’s
*7
apprehension of
bodily
immediate
harm.” ment to
to
go
dinner.
plan
Crouthers’s
(internal
Id. at
quotation
omitted); see
pretend
he, too,
was to
that
merely
an
also
States v. LeCompte, 108 unfortunate victim
robbery.
Id. at
(8th Cir.1997).
A forcible assault
637-38.
would therefore have to
something
Trimm approached Crouthers and Salski
more, such as a willful attempt or threat to
in accordance with
plan,
and Crouthers
bodily
inflict serious
injury, coupled with
told Salski
that Trimm
gun
had a
to
apparent
present ability, which causes
Crouthers’s back. Salski never saw the
the intended victim a
apprehen
reasonable
gun.
Salski, “just
Trimm told
it easy
take
sion of immediate
bodily
serious
harm or
your
and
friend here won’t get hurt.” Id.
Chambers,
death.
Now, the term “assault” is However, a willful not means admissible. other crimes attempt to injury upon inflict the may evidence be if admissible it is inextri- in connection a false statement making re- evidence with the intertwined cably (inter- firearm; agents the purchasing Id. with offense.” charged the garding omitted). case, that Fallen testify only Fallen’s In this allowed were citation nal relevant was “a violation that were for offenses had a conviction firearms past Fall- assault: of the forcible of a firearm.” purchasing in the two elements involved inflict im- ability to present re- apparent And, offenses although en’s Fallen’s were rea- harm, agents’ the and minent time, strong probative value their mote in harm. The of such apprehension sonable in weighed favor offense in to the relation Fallen’s offenses, coupled with prior Thus, the district admission. of their to the “apparent” threats, more made it admit- discretion in not abuse its court did a gun. with was armed that Fallen agents prior criminal of Fallen’s ting evidence knowledge their testified agents The history. history reinforced criminal Fallen’s of might shoot that Fallen apprehension their Thus, the other any moment. them at evidentiary ruling The second inextricably inter- was crimes evidence prosecu the came when questions the regarding evidence with the twined many times Mikosky how Agent tor asked charged offense. during his law en “shot had been at” may neverthe- evidence Such intrinsic object lawyer career. Fallen’s forcement “is probative value if its excluded less be answer ed, contending that the would of danger the outweighed substantially objec overruled the The court irrelevant. Rule Fed.R.Evid. prejudice.” unfair been shot tion, Mikosky replied, “I’ve and however, remedy, extraordinary 408 is times, then prosecutor The sir.” at three since only sparingly be used should “which the inci you compare asked, would “[h]ow con- to exclude trial court permits it the on October house Thomas Fallen’s dent at The balance evidence. cededly probative you times were 4th, with the other therefore, Rule, should the under objected again, counsel at?” Defense shot admissibility.... struck favor to sustain going “I’m replied, court and the not Rule 403 is implicated question my previ from I’ll recede objection. the prejudicial whether evidence the last answer Disregard ruling. ous ‘is value itself, probative its but whether Thus, witness, gentlemen.” ladies and the danger outweighed by substantially not to consider instructed jury was ” Fortenberry, 971 F.2d prejudice.’ unfair improper allegedly evidence. omitted). (internal citations at 721 have jury not should Assuming that the prejudicial do not believe We and Mi- questions prosecutor’s heard evidence sub- other crimes nature of the in- that the court’s kosky’s responses probative value. outweighed its stantially error, to cure inadequate was struction jury dur- court instructed The district the error whether must determine we testimony that Fallen’s both ing agents’ Hands, 184 harmless. only “considered to be were prior offenses Cir.1999) (“An erro- 1322, 1329 F.3d victims reason- of whether the on the issue in re- result evidentiary ruling will neous bodily harm apprehended immediate ably resulting error if the only versal Fur- alleged assault.” of the at the time harmless.”). case, are con- we In this by the any thermore, association to avoid “had no substantial error vinced making making threat jury between outcome,” Fortenberry, on influence statement, limited the court a false light of the substantial at for felony conviction *10 1092
remaining Mikosky of assault Court, and actors. The Ladner apprehension Fultz’s of serious bodily referring policy to the of lenity, stated that harm during their encounter with Fallen “[w]hen choice has to be made between was reasonable under the circumstances. readings two of what conduct Congress We thus any conclude that error was crime, has made a it is appropriate, before harmless because “sufficient evidence un we choose alternative, the harsher to re- infected supports error the verdict.” Id.quire that Congress spoken should have in
language that
is clear and definite. We
should not derive
outlawry
criminal
from
some ambiguous implication.” Id. at 177-
foregoing reasons,
III For the
the judgment
78, 79
(quoting
S.Ct. 209
United States v.
of the district court is
Universal C.I.T.
Corp.,
Credit
344 U.S.
218, 221-22,
AFFIRMED.
227,
73 S.Ct.
1093 v. (5th majority cites United States The Cir. F.2d 497 Renfro, 620 v. States (2d Cir.1999). Chestaro, In very- the 600 at 197 F.3d 1980). distinguishable, is Each following Chestaro, bases: a box- least, defendant removed on the the to began he pocket, [and] “from his cutter Hernandez 1. ... Each officer at the officers swing it the range, poked at close heatedly Spoke the injury as a result of a minor received got manner. “He threatening ain agent Perhaps the clos- Id. at 603. altercation.” me, ...” and to nose nose up against right majority support by cited the case est at 1576. F.2d 921 the victim. threatened States v. majority is United conclusion the Cir.1999). Chambers, F.3d 274 195 2. Wollenzien officers, There, however, the in full view of in the back struck agent The FBI defendant, told who had been the blow. with a severe from behind neck down,” FBI, down, “FBI, get get agents, at 981. F.2d hand in his place to his “attempted instead and, in re- .... pocket right front coat 3. Street and tackled agents] Chambers sponse [the ap- and his car out of got “Street Bersa semi- loaded 380 caliber found swinging his fists rangers, the proached front coat right in his pistol automatic stood Street shouting obscenities. and main- 276. I do not Id. While at pocket.” fifteen for about face with Coe face to physical proof of that must be there tain open him between trapping minutes I do weapon, or a view contact threaten- of the truck and the inside door an act which that must be there maintain at 66 F.3d 975-976. him ...” ing force, not mere and an assault evinces offi- that the question There is no words. Walker 4. reasonably concluded have here could cers office; an into walked defendant The That, however, weapon. Fallen had vic- stood over language; abusive used is primary The issue the sole issue. is not him; his gestured with tim; threatened assault. he committed whether jack- his forcible finger; index removed thumb unless that he did so no evidence There while of victim et; inches walked within as- a forcible constitutes moving a curtain office; and had to be following him from between vast difference There is a at 835 F.2d 987-988. sault. “separated.” happened happened here and what what Fernandez 5. Chambers, had been the defendant where victim, ran after “get to down” followed and told Defendant under arrest placed at 1032- him, him. 837 F.2d chased pocket where for his then reached but him.” Id. “bumped into then He 1033. Id. actually had firearm. victim’s touched the chest
The defendant’s
Crouthers,
F.2d
In
stated
Id.
victim
after a threat.
arm
majority,
victim
cited
him.
Id.
pushed
had
the defendant
open
kidnapped and forced
actually
participated
defendant
safes. The
bank
Renfro
say
I do not
robbery. Again,
planned
door, the
to their office
got
“When
see a
had to
victims here
alleged
on
lying
Agent Tichenor
employees saw
there had
I
maintain that
only
firearm.
top of
Renfro on
floor with defendant
assault,
simply
of forcible
said be
One
witness
at
him.”
intimidation.
threat or
oral
him. Id.
choking
Renfro was
*12
In
States v. Le Compte,
another
involving
threats
the future use of force.’
upon
relies,
case
majority
which the
.... The word ‘forcibly
only
means
that
’ ”
“physically
defendant
attacked Welch with some amount
must be used
of force
his fists and
and knocked
feet
her down
added) (citations
(emphasis
omitted).
Id.
into a ditch where he continued to kick her
at 1035.
dicta,
Other than possibly in
no
and threaten her.”
pistol, took ignition the victim’s key and words, and that a curtain “twitch” is not ordered him money to give or he would be sufficient. killed. Interestingly, was defendant any person Will goes who to an un- guilty found assaulting or interfering opened says door and officer, to a federal with a federal agent without the use of a “I gun.... have a my porch Get off Ior deadly dangerous weapon. Id. at 417. you,” will shoot guilty of forcible as- may There be some scattered “kudzu” sault?3 An assault is an assault. The fact language1 in the cases which supports the that the victim is a federal only officer majority position, but, again, I find no case it makes a federal crime. It does not in which it has been found that mere change the nature of an assault. The ma- words stated on the other side aof door jority has not any cited case in which an with no significant act or deed can consti- act by the defendant as innocuous as mov- tute an assault any kind. The defen- ing curtain, act, or some similar coupled have, dant could perhaps, been found words, with mere was held to be a forcible guilty intimidation, but he was not. The assault. case was only submitted on “forcible as- sault” While I will not the lesser address the included other offense of issues simple Fernandez, assault.2 In the appellant, raised I the Elev- will note that the enth stated, marginal Circuit appellant “The cor- admission of may well rectly states concept that ‘the of the use of have worked to the appellant’s substantial force contemplates requires prejudice in, than best, more at the very a marginal merely verbalizing or implying case of forcible assault. jury The found language” "Kudzu language persis- that only ... offense if following all of the facts tently spreads applicable areas not into First, nor are proven ... that the defendant forci- contemplated initially written. bly person....” assaulted the It should appellant noted was majority 3. The has not discussed right what not convicted simple of a misdemeanor as- the officers had appellant's to be porch on pursuant 111(a)(2), sault to 18 U.S.C. but of and have I not it. considered The defendant felony pursuant to the same section. The only threatened shoot the officers indictment if charge did not "intimidation” did property. not leave his even in the charged It There is no alternative. evi "knowingly willfully defendant dence he caused problem did forci- after bly jury assault....” threat, instructed that did While so. I do not condone such a "the defendant guilty can be found it is not tantamount to an assault. than rather assault of forcible guilty simple as- offense included lesser them. also submitted sault, which to even appear here does
The evidence own defi- majority’s level of
reach *13 assault,” “simple misdemeanor
nition majori- to the remarkably similar
which assault, less much of forcible
ty’s definition felony. of a the level Plaintiff-Appellant, BASS,
Michael W. OF COMMISSION- COUNTY
BOARD COUNTY, FLOR-
ERS, ORANGE Defendant-Appellee.
IDA,
No. 99-10579. Appeals, Court Circuit.
Eleventh 9, 2001.
July