United States v. Ama, 2017WL1325247 (10th Cir. April 11, 2017) (UT): The panel finds that 18 U.S.C. § 111, assault on a federal employee, is not a violent felony as defined by the ACCA’s force clause. It says that § 111(a) is not divisible and the modified categorical approach is not applicable.

United States v. Jereb, 882 F.3d 1325 (10th Cir. 2018) (UT, published): Jereb was convicted of forcibly opposing a federal officer, in violation of 18 U.S.C. § 111(b). On appeal he argued that he was entitled to a new trial because the jury was not correctly instructed on the elements of assault.

United States v. Zabawa, 719 F.3d 555 (6th Cir. 2013) The defendant was charged with assaulting a federal corrections officer in violation of 18 U.S.C. § 111. That offense requires proof that the defendant “inflicted” an injury to the officer. In this case, the defendant assaulted the officer and the officer then “head-butted” the defendant which caused the officer’s injury over his eye. While the defendant’s conduct may have caused the injury to the officer, he did not inflict the injury.

The panel, 2-1, affirmed. The majority held Jereb invited any error in the district court failing to instruct the jury that an assault is an element in any charge under 18 USC 111 when his attorney agreed to instructions and a jury form that allowed conviction without proof of an assault and this outcome is required under circuit precedent. It affirmed the treatment condition as the district court reasoned Jereb had gone off the rails early in his life, had a temper, the presence report contained Jereb’s history of violence, this history was sufficiently related to the treatment requirement to satisfy the sentencing statute.

The panel affirmed. It held the federal officer assault conviction qualified 18 USC 111(b) is assumed to be indivisible, four circuits have held 111(b) to be a crime of violence and the panel agreed as any condition under it requires an assault, assault causing bodily injury qualify as the force necessary to cause injury meets the violent physical force requirement and an assault by means of a dangerous weapon qualifies as the use of weapon intending to inflict bodily harm also satisfies the requirement. It held the conviction under District of Columbia Code 22-405(c) qualifies as the offense must involve either actual significant bodily injury or risk of injury by a violent act either of which meet the standard.

When deputy U.S. Marshals attempted to take him into custody, Jones bit the finger of one of the Marshals. He was subsequently convicted of assaulting a federal officer in violation of 18 U.S.C. § 111. In preparation for sentencing, the probation officer calculated a base offense level of 15 for the assault but also determined that Jones was a career offender under the Career Offender Guideline based on two prior felony convictions in New York for first-degree robbery and second-degree assault.

When deputy U.S. Marshals attempted to take him into custody, Jones bit the finger of one of the Marshals. He was subsequently convicted of assaulting a federal officer in violation of 18 U.S.C. § 111. In preparation for sentencing, the probation officer calculated a base offense level of 15 for the assault but also determined that Jones was a career offender under the Career Offender Guideline based on two prior felony convictions in New York for first-degree robbery and second-degree assault.

Yes, it's true that the statute is titled "Assaulting, resisting, or impeding certain officers or employees." But every conviction under 18 U.S.C. § 111(a)(1) has an essential element of assault. So said the Tenth Circuit last week in United States v. Wolfname, finding that a district court's failure to instruct on the assault element was plain error necessitating a reversal of the defendant's "resisting and interfering" conviction.

The panel affirmed holding there was no factual basis in the record to conclude Olson would have been allowed or been successful in defending against charges he lied to his supervisors and lied to a customer about the inventory he was charged to maintain or that the person who fired him was irritated by the need to go to the storage facility and resolve the issues he found there and the record instead demonstrated significant misconduct which was similar to misconduct that had always resulted in termination of employment.United States v WolfnameWolfname appealed his conviction for violating 18 USC 111(a)(1). The panel reversed and remanded.

The failure to instruct the jury on the lesser offense was reversible error.United States v. Mendez, 117 F.3d 480 (11th Cir. 1997)The offense of possessing stolen mail (18 U.S.C. § 1708) is a lesser included offense of forcibly taking mail from a mail carrier (18 U.S.C. § 2114), when the two crimes are committed contemporaneously.United States v. Gonzalez, 122 F.3d 1383 (11th Cir. 1997)The offense of obstruction of a federal officer (18 U.S.C. § 1501) is a lesser included offense of forcibly assaulting, resisting, impeding or interfering with a federal official (18 U.S.C. § 111). The failure to instruct the jury on the lesser offense resulted in reversing the conviction.