United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 2002 Decided November 5, 2002
No. 01-3059
United States of America,
Appellee
v.
Derrek E. Arrington,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 00cr00159-01)
Neil H. Jaffee, Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A.J.
Kramer, Federal Public Defender. Shawn Moore, Assistant
Federal Public Defender, entered an appearance.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and John R. Fisher, Thomas J.
Tourish, Jr., and Oliver W. McDaniel, Assistant U.S. Attor-
neys.
Before: Tatel and Garland, Circuit Judges, and Williams,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: Defendant Derrek Arrington ap-
peals from his conviction for using a dangerous weapon--to
wit, an automobile--to forcibly assault, resist, oppose, impede,
intimidate, or interfere with three United States Park Police
officers, in violation of 18 U.S.C. s 111(a) and (b). We reject
Arrington's contention that the district court plainly erred in
instructing the jury, as well as his contention that the evi-
dence presented at trial was insufficient to sustain his convic-
tion.
I
On May 10, 2000, Arrington was indicted on four counts of
violating federal law. Count 1 charged him with using a
dangerous weapon to forcibly assault, resist, oppose, impede,
intimidate, or interfere with three federal officers engaged in
the performance of their duties, in violation of 18 U.S.C.
s 111(a) and (b). Count 2 charged him with attempting to
murder a federal officer, in violation of 18 U.S.C. s 1114.
Count 3 accused Arrington of discharging a firearm during a
crime of violence, in violation of 18 U.S.C. s 924(c)(1)(A)(iii).
And Count 4 charged him with unlawfully possessing a fire-
arm as a convicted felon, in violation of 18 U.S.C. ss 922(g)
and 924(a)(2).
According to the government's evidence at trial, the case
began on April 13, 2000, when United States Park Police
officers Jonathan Daniels, Martin Yates, and Troy Eliason
stopped Arrington's car because it lacked a front license
plate. As Arrington produced his license and registration,
Daniels observed a small ziplock bag with a residue of white
powder on the floorboard. Upon Daniels' signal, the three
officers retreated to the rear of the car, where Daniels
informed them of the suspected drug paraphernalia and of his
intention to ask Arrington and his (unidentified) passenger to
get out of the car.
The officers then returned to the front of the automobile
and asked Arrington to step outside. When Arrington in-
stead reached for the gear shift, Daniels and Eliason reached
through the open driver-side door and grabbed him around
the upper body, while Yates leaned in from the passenger's
side to turn off the ignition. With all three officers still
reaching inside the car, and two of them holding onto his
body, the defendant shifted into drive and "floored it."
9/14/00 p.m. Tr. at 36. Although Yates was caught by the
frame of the car door, he soon extricated himself, as did
Eliason. Daniels, however, was dragged by Arrington's car
for at least 50 feet, through an intersection, before he was
able to free himself and fall to the ground.
All three Park Police officers then returned to their cars
and pursued Arrington in what became a high speed chase.
Arrington eventually lost control of his car and crashed into a
curb, whereupon he fled on foot with the officers in pursuit.1
Daniels and an off-duty Metropolitan Police Department offi-
cer who had joined the chase finally caught up with Arring-
ton. Yates and the off-duty officer testified that, during the
ensuing struggle, Arrington shot Daniels in the face with a
handgun. Yates and the other officer eventually subdued
Arrington and arrested him.
Arrington testified at trial in his own defense, and the story
he told of his flight from the traffic stop diverged significantly
from that of the officers. Arrington testified that he decided
to drive off because he felt threatened by the police. Accord-
ing to the defendant, he never had physical contact with any
of the officers, and no officer had any part of his body in the
car at the time Arrington drove off. After leading the
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1 At some point during the chase, Arrington's passenger disap-
peared. Arrington testified that the man leaped from the car just
after Arrington began to accelerate. Daniels and Yates testified
that he escaped along with Arrington, after the crash. Eliason
testified that he saw only one person leave the disabled automobile.
officers on the car chase, Arrington jumped out of his car and
began to run. According to Arrington, two officers caught up
with him and wrestled him to the ground. During the
struggle, a gun Arrington was carrying in his pocket acciden-
tally discharged, and the bullet hit Officer Daniels.
The jury convicted Arrington on Counts 1 and 4, but
deadlocked on Counts 2 and 3--the attempted murder and
discharging-a-firearm counts. The latter two counts were
retried twice (along with a new, additional count), each trial
ending in deadlock. After the third trial, the government
dismissed the outstanding counts and the district court sen-
tenced the defendant to 240 months' imprisonment on Counts
1 and 4. Arrington's only challenge here is to his conviction,
on Count 1, for violating 18 U.S.C. s 111(a) and (b).
II
Subsection 111(a) provides, in relevant part, that anyone
who "forcibly assaults, resists, opposes, impedes, intimidates,
or interferes with any [designated federal officer2] while
engaged in or on account of the performance of official
duties," shall be imprisoned for a maximum of three years.
18 U.S.C. s 111(a).3 Subsection 111(b) increases the maxi-
mum penalty to ten years for anyone who (so far as is
relevant here), "in the commission of any acts described in
[s 111(a)], uses a deadly or dangerous weapon...." 18
U.S.C. s 111(b).4
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2 Subsection 111(a) covers "any person designated in section 1114
of this title...." Section 1114, in turn, applies to "any officer or
employee of the United States or of any agency in any branch of the
United States Government (including any member of the uniformed
services)...." 18 U.S.C. s 1114.
3 "[W]here the acts in violation of [the] section constitute only
simple assault," s 111(a) states that the maximum sentence of
imprisonment is one year rather than three. Under s 111(b),
however, "the use of a deadly or dangerous weapon [is] sufficient
... to boost the crime above the level of 'simple assault.' " United
States v. Duran, 96 F.3d 1495, 1511 (D.C. Cir. 1996).
4 In full, the subsection applies to "[w]hoever, in the commission
of any acts described in subsection (a), uses a deadly or dangerous
Arrington raises two objections to his conviction for violat-
ing s 111(a) and (b): first, that the district court gave errone-
ous jury instructions regarding the elements of both the (a)
and (b) offenses, and second, that the evidence presented at
trial was insufficient to support his conviction for the (b)
offense. In order to evaluate these claims, we first set forth
the elements of s 111(a) and (b),5 a determination we make
de novo. We then consider, in Parts III and IV, whether the
jury was properly charged and whether the evidence was
sufficient to support Arrington's conviction.
We begin with s 111(a). As the words of that subsection
make clear, to violate its proscription a defendant must: (1)
forcibly; (2) assault, resist, oppose, impede, intimidate, or
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weapon (including a weapon intended to cause death or danger but
that fails to do so by reason of a defective component) or inflicts
bodily injury." 18 U.S.C. s 111(b). Neither party suggests that
the definition of deadly or dangerous weapon contained in the
parenthetical applies here or otherwise informs our consideration of
the questions at issue in this opinion. Nor does the alternative to
the use of a deadly or dangerous weapon specified in the subsec-
tion--i.e., the infliction of bodily injury--apply to this case. The
government did not request, and the court did not give, a jury
charge regarding this alternative.
5 Both Arrington and the government treat the requirements of
s 111(b) as if they were offense elements, rather than sentencing
factors, and agree that those requirements (along with the elements
of s 111(a)) must be found by a jury. So, too, do those circuits that
have considered the question since the Supreme Court held, in
Apprendi v. New Jersey, 530 U.S. 466 (2000), that "any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt." Id. at 490; see United States v. Campbell, 259
F.3d 293, 298 (4th Cir. 2001) (holding that s 111(b) is a separate
offense from s 111(a) and that use of a dangerous or deadly weapon
is an element of the s 111(b) offense); United States v. Yates, 304
F.3d 818, 823 (8th Cir. 2002) (ruling that "Apprendi requires a jury
finding beyond a reasonable doubt of use of a weapon or bodily
injury as a predicate for imposing a sentence over three years"
under s 111(b)).
interfere with; (3) a designated federal officer6; (4) while
engaged in or on account of the performance of official duties.
In addition, the defendant must have: (5) the "intent to do
the acts" specified in the subsection. United States v. Klein-
bart, 27 F.3d 586, 592 (D.C. Cir. 1994) (quoting United States
v. Feola, 420 U.S. 671, 686 (1975)). Finally, as we indicated in
United States v. Heid, 904 F.2d 69, 71 (D.C. Cir. 1990), the
adverb "forcibly" in the first element of the offense modifies
each of the prohibited acts specified in the second element:
that is, a defendant does not violate the statute unless he
forcibly assaults or forcibly resists or forcibly opposes, etc.
As the parties agreed at oral argument, so far all of this is
common ground between them.
We turn next to the elements of s 111(b), and here, too,
find some common ground. Again, the statutory language
makes clear that, to qualify under this subsection, the defen-
dant must: (1) use a deadly or dangerous weapon7; (2) in the
commission of any of the acts described in the prior subsec-
tion. In addition, although the language merely states that
the defendant must "use[ ]" the weapon, the government
agrees--as do we--that: (3) the defendant must use the
weapon intentionally. See Appellee's Br. at 26. As the
Supreme Court stated in United States v. Feola, "in order to
incur criminal liability under s 111 an actor must entertain
... the criminal intent to do the acts therein specified," 420
U.S. at 686, and the act specified in s 111(b) is the use of a
deadly weapon. Accordingly, intent to use the weapon is a
necessary element, and a defendant who does so purely by
accident does not come within the scope of s 111(b).
We now reach the point of the parties' dispute. The
foregoing is sensible enough, Arrington says, when the weap-
on at issue is one that is inherently deadly, like a gun. But
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6 See supra note 2 (describing officers protected under s 111).
7 As discussed in note 4 above, s 111(b) sets forth an alternative
for this element: the defendant must either use a deadly or
dangerous weapon "or inflict[ ] bodily injury."
what if the weapon is one that is deadly only if used in a
certain manner, like Arrington's car? To this query, the
government responds that a distinction between the two
kinds of weapons is indeed appropriate. For an object that is
not inherently deadly, the government concedes that the
following additional element is required: (4) the object must
be capable of causing serious bodily injury or death to
another person and the defendant must use it in that manner.
Appellee's Br. at 19; see United States v. Murphy, 35 F.3d
143, 147 (4th Cir. 1994); 1 Leonard B. Sand et al., Modern
Federal Jury Instructions (Criminal) p 14.01, at 14-25
(2002); 2 Kevin F. O'Malley et al., Federal Jury Practice &
Instructions (Criminal) s 24.06, at 68, 71 (5th ed. 2000).
That is, for a car to qualify as a deadly weapon, the defendant
must use it as a deadly weapon and not simply as a mode of
transportation.
Arrington, however, asks us to add a fifth requirement. It
is not enough, he argues, that a defendant intend to use the
object; nor is it enough that he actually use the object in a
deadly manner. In addition, Arrington contends, the defen-
dant must intentionally use the object as a weapon.
We must state at the outset that, in light of the other
elements of the (b) offense, we see little practical difference
between the positions of the parties. When asked at oral
argument to posit a set of circumstances in which adding
Arrington's fifth element would make a difference, the gov-
ernment was unable to suggest one. Arrington, for his part,
did propose such a scenario: he contended that without the
fifth element, a jury could convict a defendant for using a car
merely as a means of escape, rather than as a deadly or
dangerous weapon.8 Although the government agrees that
the use of a car merely to effectuate an escape would not
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8 Arrington also contends that without his fifth element, a jury
could convict "where a defendant was sitting inside an idling car
and punched or threatened to punch a federal officer." Appellant's
Br. at 19. In this scenario, however, the car itself would not have
been used as a deadly weapon, and hence the conduct would not
satisfy the fourth element of s 111(b) as detailed above.
qualify under the statute, it contends that its construction of
s 111(a) and (b) would exclude a conviction for such use.
Appellee's Br. at 20-21. We agree. The use of a car purely
for flight would not satisfy the fourth element of s 111(b):
that the object be used in a deadly or dangerous manner.
Nor would Arrington's scenario satisfy the first element of
s 111(a), applicable to the (b) offense by incorporation, be-
cause it would not involve the element of force.9
In the end, however, the decisive question is not whether
the element Arrington proposes would make any difference in
this or other cases, but whether Congress intended it to be an
element of the offense. We discern no evidence of such
congressional intent. Arrington's proposed element is cer-
tainly not suggested by the language of s 111(b), which
simply requires that the defendant "use" a deadly or danger-
ous weapon in the commission of the acts described in
s 111(a).10 Nor is s 111(b) bereft of a mens rea requirement.
Conviction requires both the intent to commit one of the acts
specified in s 111(a), and the intent to use the object that
constitutes the deadly weapon. Finally, such evidence of
legislative intent as exists counsels against adding anything
further. As the Supreme Court noted in Feola, Congress
intended s 111 to protect federal officers to the maximum
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9 Arrington further contends that the difference made by his
proposed fifth element is reflected in the facts of his case. Al-
though he concedes that the testimony of the government's wit-
nesses would permit his conviction for using his car as a deadly
weapon, he maintains that it is insufficient to permit conviction for
intentionally using the car as a weapon. We disagree. Officer
Daniels testified that at the time Arrington stepped on the gas,
Daniels' upper body was inside the car and his arms were around
Arrington's neck and shoulders. Given the extent of such physical
contact, a jury could reasonably conclude that Arrington knew that
stepping on the gas would cause the car to injure Daniels seriously,
and hence that Arrington intended to use the car as a weapon
against the officer.
10 Cf. 1 Sand p 14.01, at 14-25 ("If a violation of section 111(b) is
charged, add: Fifth, that the defendant used a deadly or dangerous
weapon to commit such acts....").
extent possible, 420 U.S. at 684, a consideration that led the
Feola Court to reject an "unexpressed requirement" that the
defendant know that his intended victim is a federal officer:
[I]n order to effectuate the congressional purpose of
according maximum protection to federal officers by
making prosecution for assaults upon them cognizable in
the federal courts, s 111 cannot be construed as embody-
ing an unexpressed requirement that an assailant be
aware that his victim is a federal officer. All the statute
requires is an intent to assault, not an intent to assault a
federal officer.
Id.
Rejecting the "unexpressed requirement" proposed by Ar-
rington, one with an even less persuasive appeal to fairness
than that proposed in Feola, follows a fortiori. In Feola, the
Court responded with little sympathy to the claim that it
would be unfair to convict a defendant who did not know that
his victim was a federal officer:
This interpretation poses no risk of unfairness to defen-
dants. It is no snare for the unsuspecting. Although
the perpetrator ... may be surprised to find that his
intended victim is a federal officer in civilian apparel, he
nonetheless knows from the very outset that his planned
course of conduct is wrongful. The situation is not one
where legitimate conduct becomes unlawful solely be-
cause of the identity of the individual or agency affected.
Id. at 685. Similarly, there is certainly no "snare for the
unsuspecting" in the absence of the element sought by Ar-
rington. To convict a defendant of the s 111(b) offense, the
jury must find (inter alia) that he forcibly assaulted (or
forcibly resisted, etc.) a federal officer, that he did so inten-
tionally, that he used a dangerous weapon in the commission
of that act, and that he used the weapon intentionally. Any
defendant who engages in such behavior knows "from the
very outset that his planned course of conduct is wrongful."
Id. Accordingly, we have no warrant to impose the "unex-
pressed" offense element advocated by Arrington.11
III
Having determined the elements of the s 111(b) offense,
we now proceed to Arrington's argument that the district
court erroneously instructed the jury as to those elements in
two respects. The first of these--Arrington's contention
regarding s 111(b)'s dangerous weapon element--is readily
dismissed. Although the court instructed that the govern-
ment had to prove both that Arrington committed one of the
acts specified in s 111(a) "while using a deadly or dangerous
weapon," and that he "intentionally" used the weapon, 9/18/00
a.m. Tr. at 20-21, Arrington contends that the court should
also have required the government to prove that he intention-
ally used his car as a weapon. Since, as we have just held,
that kind of intent is not an element of the offense, the court's
failure to so instruct the jury did not constitute error.12
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11 In further support of his proposed element, Arrington cites
United States v. Duran, 96 F.3d 1495 (D.C. Cir. 1996), in which we
remarked that "the act of using a deadly weapon with the purpose
of causing Secret Service agents to fear imminent serious bodily
injury constituted a crime punishable by ten years' imprisonment
under s 111." Id. at 1511. That statement was not intended to
describe a generally applicable element of the s 111(b) offense, but
rather to summarize the evidence against defendant Duran. In
Duran's case, unlike Arrington's, there was no evidence that the
defendant assaulted the officers by attempting to cause them bodily
injury, since "there was no evidence that he ... even saw them,
while he was firing" his weapon. Id. at 1509. Instead, the evidence
against Duran constituted a different category of assault: attempt-
ing to put the officers in fear of imminent serious bodily injury. Id.
12 Arrington also claims that the court exacerbated the alleged
error by ambiguously instructing the jury that, to convict, it must
find that the defendant intentionally used the weapon "in some
manner." 9/18/00 a.m. Tr. at 21. Although we agree that the
instruction was ambiguous, it immediately followed the court's
explanation that a deadly weapon was a device "capable of inflicting
Arrington's second complaint is that the district court erred
by failing to instruct the jury that the term "forcibly" in
s 111(a) modifies not only the proscribed act of assault, but
each of the alternatives as well: that is, the government must
prove that the defendant forcibly assaulted, forcibly resisted,
forcibly opposed, forcibly impeded, forcibly intimidated, or
forcibly interfered with a federal officer. Because Arrington
did not object to the court's instruction at trial, we review this
complaint solely to determine whether the district court
committed plain error. Fed. R. Crim. P. 52(b); see United
States v. Olano, 507 U.S. 725, 732 (1993).
As we have discussed in Part II above, Arrington is correct
in contending that the adverb "forcibly" modifies each of the
verbs it precedes, and not only "assault." See Heid, 904 F.2d
at 71; see also United States v. Schrader, 10 F.3d 1345, 1348-
50 (8th Cir. 1993); United States v. Giampino, 680 F.2d 898,
902 (2d. Cir. 1982); Long v. United States, 199 F.2d 717, 718-
20 (4th Cir. 1952). The government concurs. See Appellee's
Br. at 29. In order to avoid uncertainty, it is therefore the
better practice for the trial court to advise the jury, along the
lines approved in Heid, that " '[b]efore you can find the
defendant guilty, you must find beyond a reasonable doubt
that the defendant acted forcibly.' " 904 F.2d at 71.13 Here,
the court did not give such guidance, but rather simply
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serious bodily injury or causing the death of another person," id. at
20, and that an "automobile may be considered a deadly or danger-
ous weapon if used in this manner," id. at 20-21 (emphasis added).
We do not think the jury was misled regarding the "manner" to
which the court was referring, and we therefore do not agree that
the instruction--to which Arrington did not object--constituted
plain error. See United States v. Gaviria, 116 F.3d 1498, 1510
(D.C. Cir. 1997) ("[W]e have long recognized that one ambiguous
part of an instruction may be made clear by another unambiguous
part of the same instruction.") (citing United States v. Lemire, 720
F.2d 1327, 1339-41 (D.C. Cir. 1983)).
13 Better still is this two-sentence pattern instruction:
All of the acts--assault, resist, oppose, impede, intimidate
and interfere with--are modified by the word "forcibly."
instructed that an essential element of the offense was that
"the defendant forcibly assaulted, resisted, opposed, impeded,
intimidated, or interfered with" one of the officers. 9/18/00
a.m. Tr. at 20.
But while we would prefer a more explicit instruction, we
cannot say that the instruction given by the district court
constituted plain error. Nor need we decide whether the
instruction was error at all, because any error certainly was
not "plain." To the contrary, the instruction tracked the
statutory language, and it is precisely that language that
caused us to infer that "forcibly" is applicable to each of the
prohibited acts in the first place. Because this construction
seems to us to be the obvious reading of the statutory
language,14 the court's use of that language did not constitute
plain error.
Arrington also argues that the district court further con-
fused the situation because, after reading the above-quoted
instruction, it subsequently referred to this element as one
requiring "forcible assault," without continuing to name the
alternative prohibitions.15 In context, we think it clear that
the judge simply used "forcible assault" as a shorthand for
the entire list of prohibited acts,16 and we expect that the jury
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Thus, before you can find the defendant guilty you must find,
beyond a reasonable doubt, that he acted forcibly.
1 Sand p 14.01, at 14-10.
14 See Long, 199 F.2d at 719 ("The use of the adverb 'forcibly'
before the first of the string of verbs, with the disjunctive conjunc-
tion used only between the last two of them, shows quite plainly
that the adverb is to be interpreted as modifying them all.").
15 See 9/18/00 a.m. Tr. at 20 (listing other elements of the offense
as requiring, for example: that "at the time of this forcible assault
the person or persons assaulted ... were officers or employees of
the United States"; that "the officer employees ... were engaged
in their official duties at the time of the assault"; and that "the
defendant committed the assault while using a deadly or dangerous
weapon" (emphasis added)).
16 Indeed, Arrington used a similar shorthand in his own appel-
late brief, frequently reducing the list of prohibited acts from six to
would have understood as much. To the extent that the jury
did not understand, however, any confusion was likely to
favor the defendant, as it would have caused the jury to
believe that proof of a different act--such as forcible resis-
tance or forcible opposition--was insufficient for conviction.
IV
Finally, Arrington contends that the evidence presented at
his trial was insufficient to support his conviction under
s 111(b). Our review of such a challenge is limited to deter-
mining "whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319
(1979) (emphasis in original).
Although Arrington does not dispute that the evidence was
sufficient to satisfy the requirements of s 111(a), see Appel-
lant's Br. at 11; Reply Br. at 3 n.1, he contends that it did not
meet the additional requirements of s 111(b). In his view,
the evidence "established no more than that [he] used his car
to try to flee from the officers." Appellant's Br. at 17.17
There was, to be sure, evidence from which a reasonable jury
could have reached that conclusion: namely, Arrington's own
testimony that he had no physical contact with the officers
and that no part of any of their bodies was in the car at the
time he hit the gas. But we are required to view the
evidence in the light most favorable to the prosecution, not
the defendant, and from that perspective there is no question
that a reasonable juror could have found a violation of
s 111(b).
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three. See, e.g., Appellant's Br. at 1, 3, 9, 10 (characterizing the
offense as using a dangerous weapon "to assault, resist, or impede"
a federal officer).
17 In fact, this claim is inconsistent with Arrington's representa-
tion that he does not dispute the sufficiency of the evidence to
establish a violation of s 111(a). Under that subsection, the defen-
dant must have committed the prohibited acts "forcibly," a descrip-
tion that is inconsistent with Arrington's "mere flight" theory.
The Park Service officers testified that they reached into
Arrington's car and grabbed the defendant around his upper
body. At that point, Arrington reached down, put the gear-
shift into the drive position, and "took off"--throwing two of
the officers away from the car and dragging another for at
least 50 feet through an intersection. Such testimony was
sufficient for a reasonable juror to find that Arrington forci-
bly assaulted the officers, that he did so intentionally, that he
used his car in the commission of that assault, that he used
his car intentionally, and that he used the car as a deadly
weapon. Nothing more is required to sustain a conviction for
violating s 111(b).
V
For the foregoing reasons, we conclude that the district
court did not plainly err in charging Arrington's jury regard-
ing the elements of 18 U.S.C. s 111(a) and (b), and that the
evidence was sufficient to sustain his conviction. The judg-
ment of the district court is therefore
Affirmed.