United States v. Jay Briley

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4831

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAY BONANZA BRILEY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:12-cr-00482-LO-1)

Argued: September 19, 2014 Decided: October 22, 2014

Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Duncan and Judge Keenan joined.

ARGUED: Cara Viglucci Lopez, SIDLEY AUSTIN LLP, Washington,
D.C., for Appellant. David Sang Hak Lee, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia; Gordon D. Todd, Sean R.
Dickson, SIDLEY AUSTIN LLP, Washington, D.C., for Appellant.
Dana J. Boente, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
WILKINSON, Circuit Judge:

Appellant Jay Bonanza Briley was convicted after a two-day

jury trial on four counts arising from intimate sexual

activities in a national park and an ensuing physical

altercation with United States Park Police officers. Briley now

challenges the interpretation of the statute under which he was

convicted, 18 U.S.C. § 111. He also contests the admission of

evidence of a subsequent act under Federal Rule of Evidence

404(b). Finding no reversible error, we affirm.

I.

In reviewing Briley’s conviction, we consider the evidence

in the light most favorable to the prevailing party, here the

government. Evans v. United States, 504 U.S. 255, 257 (1992);

see United States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en

banc).

A.

On the afternoon of January 12, 2012, Park Police officers

were patrolling the Washington Sailing Marina in Alexandria,

Virginia. The Marina serves as a recreational area at

Daingerfield Island, a national park situated along the George

Washington Memorial Parkway and the Potomac River. The Marina,

which has several parking lots, is also a reputed meeting place

2
for sexual encounters. Officers also patrol the area to prevent

criminal activities such as illicit drug use, alcohol offenses,

and disorderly conduct.

Two plain-clothes Park Police officers on patrol in an

unmarked vehicle, William Brancato and Robert Usher, observed a

man parking his car next to Briley’s SUV. After the man entered

Briley’s vehicle, the two men reclined the front seats, and

Briley placed a sunscreen across the windshield. Seeing other

people approaching, Briley drove to another Marina parking lot.

Inside the newly parked SUV, Briley was naked, and his

companion’s pants were down. From afar, the two officers saw

Briley and the other man preparing to engage in sexual

relations.

Brancato and Usher contacted two other Park Police officers

on patrol nearby, Corey Mace and Thomas Twiname. Mace and

Twiname, who were wearing tactical attire with police markings,

drove to the Marina and approached Briley’s SUV on foot. Briley

exclaimed, “It’s the cops.” J.A. 151. In response to a directive

from Mace, Briley’s companion opened the front passenger door,

exited the SUV, and lay on the ground. Briley remained in the

vehicle.

Standing on the driver’s side of the vehicle, Twiname

banged on the window and yelled, “Police, open the door.”

J.A. 115. When Briley objected that he was naked, Twiname

3
threatened to smash the window. Briley then opened the door, but

he refused to follow Twiname’s subsequent order to exit the

vehicle. Twiname grabbed Briley’s left arm and struggled to pull

him from the vehicle. After Twiname let Briley pull his pants

up, Briley locked his legs under the steering column to secure

himself and began honking the horn. In an unsuccessful effort to

handcuff Briley, Twiname entered the SUV and ended up behind the

driver’s seat. From there, he wrapped his arms around Briley’s

neck and upper shoulders. Mace tried to assist his fellow

officer with a wristlock, to no avail. Twiname could not subdue

Briley.

The two plain-clothes officers, Usher and Brancato, arrived

on the scene, shouting “police” and “stop resisting.” J.A. 121,

212. After securing Briley’s companion, Usher joined Brancato on

the driver’s side of the car. As these two officers grabbed

Briley and attempted to wrest him from the vehicle, Briley tried

to push Usher out of the way and struck him in the arms, side,

and lower back. Usher suffered from various lower-back problems

after the incident.

During the fracas on the driver’s side of the car, Briley

kicked Brancato in the abdomen. Brancato then tried to loosen

Briley’s position in the vehicle by striking him on his side. As

the effort to subdue Briley continued, Briley placed another

kick -- this time, harder -- into Brancato’s abdomen. Brancato

4
later suffered from impairment of his pancreas and lost his

gallbladder.

Briley eventually agreed to exit the vehicle, but as soon

as he stepped out, the struggle resumed. Briley moved his arms

to keep the officers from handcuffing him and assumed an

aggressive stance. Brancato sought to control Briley by

attempting to grab his shoulder, but instead hit him on the side

of the head. Briley then rushed toward both Brancato and Usher

and pushed them backward. Even as Brancato slung his arm over

Briley’s shoulder, Briley managed to drag Brancato -- until

Twiname joined the fray along with Usher, and they all tumbled

to the ground. After further tussling with Briley on the ground,

the officers placed him in handcuffs. Briley finally ceased

resisting. He subsequently denied punching or kicking anyone,

and he said he did not know whether these individuals were in

fact police officers.

B.

A grand jury indicted Briley in the Eastern District of

Virginia. In the superseding indictment, the government alleged

three violations of 18 U.S.C. § 111(a) for Briley’s conduct

against the officers, as well as disorderly conduct. Count 1

charged Briley with the felony of forcibly assaulting,

resisting, opposing, impeding, and interfering with Officer

5
Brancato while making physical contact. Count 2 charged him with

the felony of forcibly resisting, opposing, impeding, and

interfering with Officer Usher while making physical contact

(but omitted a specific allegation of assault). Count 3 charged

him with the misdemeanor of forcibly resisting, opposing,

impeding, and interfering with Officer Twiname (but omitted

specific allegations of either assault or physical contact).

Last, Count 4 charged him with the misdemeanor of disorderly

conduct for recklessly creating a risk of causing public alarm,

nuisance, jeopardy, and violence by engaging in an obscene

display and act within federal land administered by the National

Park Service, in violation of 36 C.F.R. § 2.34(a)(2).

During a two-day jury trial, Briley contested all the

counts against him. The defense moved to dismiss Counts 2 and 3

on the ground that the government had failed to allege an

“assault” in those instances, but the district court denied the

motion. For Count 1, the district court instructed the jury that

the government had to prove that Briley “forcibly assaulted,

resisted, opposed, impeded, or interfered with” Officer

Brancato. J.A. 424 (emphasis added). For Counts 2 and 3, the

court told the jury that it was “not necessary to find assault”:

the government had to prove only that Briley “forcibly did any

one of the several alternative acts as charged” toward Officers

Usher and Twiname. J.A. 426.

6
 The district court allowed the government, under Federal

Rule of Evidence 404(b), to introduce evidence of other

instances in which officers had caught Briley engaging in public

sexual activities within federal parklands -- including conduct

that occurred after the underlying January 2012 incident. The

defense objected to the introduction of Briley’s prior and

subsequent acts, but was overruled. The court allowed this

evidence as “well within the wheelhouse of permissible testimony

under Rule 404(b).” J.A. 57.

Although the government initially asked to introduce the

evidence of prior and subsequent acts as part of its case-in-

chief, it ended up calling the apprehending officers to testify

on rebuttal, after Briley’s own testimony. To help satisfy the

elements of the disorderly conduct charge, the government

presented evidence of Briley’s prior citations for masturbating

in public restrooms (in the Marina area in 2000, and at another

nearby federal park in 2001).

In addition, the court permitted the government to

introduce evidence of Briley’s conduct approximately two months

after the underlying altercation. On March 20, 2012, Officer

Enrique Wong had spotted Briley in the same Marina parking area

engaging in sexual activities with another man in the same SUV.

Wearing a police uniform and driving a marked police cruiser,

Wong found Briley nearly naked, putting on his pants, with the

7
vehicle’s front seats reclined. Wong arrested Briley and the

other man without resistance or further incident. At separate

bench trials, both were found guilty of disorderly conduct for

this activity.

The jury convicted Briley on all four counts. 1 The district

court sentenced him to a prison term of seventy-eight months,

with the sentences for the various counts running concurrently.

The court also imposed a term of three years of supervised

release and ordered Briley to pay $62,306.10 in restitution. The

lion’s share of that sum, $54,849.91, was directed to Officer

Brancato. After hearing expert medical testimony, the court

concluded that the trauma from Briley’s kicks had caused

1
Before the court gave the final charge to the jury, Briley
asked it to add “sexual orientation” to the instructed list of
factors (“race, color, religion, national ancestry, or gender”)
that should not influence the jury. The government did not
object, and the court stated that it would add the term to the
jury instruction “out of an abundance of caution.” J.A. 304. In
the actual instruction, however, the court omitted the term. The
defense did not object to the instruction at the time. Notably,
the court had questioned prospective jurors during voir dire
about their bias regarding sexual orientation, and it had issued
an opening instruction to the jury not to be influenced by
prejudices against either party. During closing arguments, the
government referenced the court’s planned instruction and told
the jury that Briley was “not on trial” for his sexual
orientation. J.A. 393. We find no error on this point. Briley
further argues that “this failure simply underscores and
magnifies the impact of the improperly admitted and prejudicial
subsequent acts propensity evidence,” Appellant’s Reply Br.
at 28 n.8 -- a point we address in Part III, infra.

8
Brancato’s pancreatitis, which in turn had compelled the removal

of his gallbladder. Briley now appeals his convictions.

II.

Briley first contends that assault is a required element of

the 18 U.S.C. § 111(a) offenses alleged in Counts 1, 2, and 3.

He maintains that the government failed to charge an actual

violation of § 111(a) in Counts 2 and 3, and that the district

court’s failure to mandate a specific finding of assault rather

than other predicate acts vitiated the convictions on all three

counts. We find no merit in Briley’s argument. The district

court read the statute properly.

A.

Section 111 protects both the physical safety of federal

officers and the integrity of their functions. See United States

v. Feola, 420 U.S. 671, 678-79 (1975). Indeed, through § 111

Congress wanted to afford “uniformly vigorous protection of

federal personnel” to the ”maximum” degree. Id. at 684. Under

the heading “Assaulting, resisting, or impeding certain officers

or employees,” the statute provides:

(a) In General. -- Whoever --

(1) forcibly assaults, resists, opposes, impedes,
intimidates, or interferes with any person
designated in section 1114 of this title while

9
 engaged in or on account of the performance of
official duties; or

(2) forcibly assaults or intimidates any person
who formerly served as a person designated in
section 1114 on account of the performance of
official duties during such person’s term of
service,

shall, where the acts in violation of this section
constitute only simple assault, be fined under this
title or imprisoned not more than one year, or both,
and where such acts involve physical contact with the
victim of that assault or the intent to commit another
felony, be fined under this title or imprisoned not
more than 8 years, or both.

(b) Enhanced Penalty. -- Whoever, in the commission of
any acts described in subsection (a), uses a deadly or
dangerous 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, shall
be fined under this title or imprisoned not more than
20 years, or both.

18 U.S.C. § 111. The individuals designated in §§ 111(a)(1) and

(2) include “any officer or employee of the United States or of

any agency in any branch of the United States Government,” such

as a U.S. Park Police officer. Id. § 1114.

Several features are immediately evident from the statutory

structure. One is the type of officials who are protected.

Subsection 111(a)(1) applies to individuals actually engaged in

the performance of official duties, while § 111(a)(2) applies to

those formerly engaged in such duties. The relevant acts differ

for current officials in § 111(a)(1) (“forcibly assaults,

resists, opposes, impedes, intimidates, or interferes”) and

10
former officials in § 111(a)(2) (“forcibly assaults or

intimidates”). Id. § 111(a)(1), (2).

Another important feature is the statute’s graded penalty

structure. The punishments increase with the severity of the

crime. The final paragraph of § 111(a) provides that, “where the

acts in violation of this section constitute only simple

assault,” a person has committed a misdemeanor, punishable by up

to one year in prison. Id. § 111(a). Next, where the acts in

violation of § 111 entail either “physical contact with the

victim of that assault” or “the intent to commit another

felony,” a person has committed a felony, punishable by up to

eight years in prison. Id. Moving another step up, § 111(b)

specifies that, where a person performs “any” of the violative

acts outlined in § 111(a) and also either “uses a deadly or

dangerous weapon” or “inflicts bodily injury,” that person has

committed a felony, this time punishable by up to twenty years

in prison. Id. § 111(b); see also United States v. Campbell, 259

F.3d 293, 299 (4th Cir. 2001).

In essence, § 111 proscribes five types of offenses: a

misdemeanor (constituting only simple assault), two less serious

felonies (involving either physical contact or felonious

intent), and two more serious felonies (involving either a

weapon or bodily injury). Notably, in defining the penalties for

the various offenses, each statutory provision refers back to

11
the original list of violative acts against current or former

officials. 18 U.S.C. § 111(a) (“the acts in violation of this

section”); id. (“such acts”); id. § 111(b) (“any acts described

in subsection (a)”). For any of the § 111 penalty provisions,

then, a jury must find every element of a charged offense proved

beyond a reasonable doubt, for each step on the scale increases

the maximum statutory punishment. See Apprendi v. New Jersey,

530 U.S. 466, 490 (2000); Jones v. United States, 526 U.S. 227,

232 (1999); see also Campbell, 259 F.3d at 299 (Ҥ 111(b)

‘provide[s] for steeply higher penalties,’ which are

‘condition[ed] on further facts . . . that seem quite as

important as the elements’ of the principal crime found in

§ 111(a).” (alterations in original) (quoting Jones, 526 U.S. at

233)).

A number of observations emerge from this analysis of the

statutory structure. First, because Briley’s actions involved

current Park Police officers undertaking their official duties,

all six verbs listed in the disjunctive in § 111(a)(1) are

available. Second, the contours of the three § 111(a) counts

come into sharper relief. Counts 1 and 2 alleged “physical

contact” felonies against Officers Brancato and Usher,

respectively, while Count 3 alleged a misdemeanor against

Officer Twiname. By the terms of § 111(a), either a misdemeanor

or a “physical contact” felony may arise from any of “the acts

12
in violation of this section” -- namely, forcibly assaulting,

resisting, opposing, impeding, intimidating, or interfering with

current officers such as these. And third, the district court

squarely instructed the jury that the government shouldered the

burden of proving beyond a reasonable doubt that Briley had

“committed each and every element of the offense charged in the

indictment.” J.A. 420. The jury then returned a verdict finding

Briley guilty on all three § 111 counts. Although the statute is

written disjunctively (“or”), the jury found Briley guilty on

counts that were worded conjunctively (“and”).

B.

Briley now argues that assault is a required element not

only of the misdemeanor in § 111(a), but also of the statute’s

“physical contact” felony. Although the government charged

assault as part of the felony in Count 1 (against Brancato), it

chose not to charge assault for either the felony in Count 2

(against Usher) or the misdemeanor in Count 3 (against Twiname).

For several reasons, we do not think assault is a required

element.

First, Briley’s reading renders a slew of verbs in § 111(a)

largely surplusage. When we interpret statutes, we must

“construe all parts to have meaning.” PSINet, Inc. v. Chapman,

362 F.3d 227, 232 (4th Cir. 2004). We avoid interpretations that

13
would turn some statutory terms into nothing more than

surplusage. United States v. Medina, 718 F.3d 364, 367 n.1 (4th

Cir. 2013); In re Total Realty Mgmt., LLC, 706 F.3d 245, 251

(4th Cir. 2013). Subsection 111(a) expressly covers a person who

“forcibly assaults, resists, opposes, impedes, intimidates, or

interferes with” a federal official. 18 U.S.C. § 111(a).

Briley’s reading would render five of those six words -- all but

“assault” -- inoperative with respect to both the misdemeanor

and the “physical contact” felony. We must, however, ascribe

meaning to the five remaining verbs.

Second, and relatedly, Briley’s assessment of § 111 wanders

too far from congressional intent. Congress enumerated these six

verbs in the disjunctive. Why would Congress, in the same

subsection, then swiftly render five of these verbs extraneous

or defunct? The statute, moreover, consistently references the

same set of all six alternative verbs for each penalty provision

-- “the acts in violation of this section” for the misdemeanor

in § 111(a), “such acts” for the lesser felonies in § 111(a),

and “any acts described in subsection (a)” for the greater

felonies in § 111(b). Those phrases obviously denote all six

verbs. Why would Congress repeatedly refer back to the same list

of threshold acts for every designated offense, and yet covertly

assign varying acts to different crimes? The obvious answer is

that Congress had no such intention: a person could commit any

14
one of these six acts and still fall under the statute’s

coverage.

Third, Briley’s interpretation rips a big hole in the

statutory scheme. Although his reading largely preserves the

protections for the physical safety of federal officials, it

leaves those officials without protection for the carrying out

of federal functions. It misses the crucial point that § 111

safeguards not only physical safety, but also functional

integrity. See Feola, 420 U.S. at 678-79. More broadly, it

undercuts the statute’s mandate of full and vigorous

enforcement. See id. at 684.

Fourth, Briley’s take on § 111 produces an absurd result.

His reading would allow an individual to commit an array of

forcible acts against federal officials performing government

functions without criminal consequence. That person could use

force to resist federal officials, to oppose them, to impede

them, to intimidate them, and to interfere with them -- and yet

escape the reach of § 111. Apparently, such a person could evade

sanction so long as he or she did not also (1) act with the

intent to commit another felony, (2) use a deadly or dangerous

weapon, or (3) inflict bodily injury. See Appellant’s Br. at 14.

That too leaves a patchwork statute, not the comprehensive

protections Congress intended.

15
 Finally, although some of our sister circuits have read

§ 111 somewhat differently, the operative distinctions between

those approaches and the conclusion we draw today are limited.

Some circuits have agreed with us that § 111 prohibits the six

different kinds of enumerated acts and that, specifically, the

misdemeanor provision is not limited to assault. United States

v. Williams, 602 F.3d 313, 317-18 (5th Cir. 2010); cf. United

States v. Gagnon, 553 F.3d 1021, 1027 (6th Cir. 2009) (adding

that “Congress . . . used the phrase ‘simple assault’ as a term

of art to incorporate the actions proscribed in § 111(a)(1) and

§ 111(a)(2)”). The Second Circuit has taken an ostensibly

varying view of § 111 and concluded that some form of “simple

assault” is required for the misdemeanor provision. United

States v. Davis, 690 F.3d 127, 135 (2d Cir. 2012) (“[F]or a

defendant to be guilty of the misdemeanor of resisting arrest

under Section 111(a), he necessarily must have committed common

law simple assault.”). Whatever variance the latter decision

manifests arises seemingly from facts that involved primarily

passive resistance toward all the officers involved, compared

with Briley’s active, forcible actions against the Park Police.

See Davis, 690 F.3d at 129-30 (“Davis did not fight back. . . .

There was no evidence that Davis threatened or struck out at any

of the agents.”). Given the statute’s crucial adverb --

“forcibly” -- the factual distinctions are significant. Facts of

16
the more passive kind fall much closer to the nonforcible

borderline. Whatever daylight lies between the circuits’

approaches, it seems to us that the practical distinction is not

a large one.

For those reasons, it was proper for the district court to

instruct the jury that Briley could have committed any of the

threshold acts charged -- not “assault” only -- to be found

guilty of a § 111 offense, so long as the other elements of the

offense were satisfied.

III.

Briley also argues that the district court erred in

admitting evidence of a subsequent crime under Federal Rule of

Evidence 404(b). Over the defense’s objection, the district

court allowed the government to introduce evidence of Briley’s

conduct at the same Washington Sailing Marina parking area in

March 2012, about two months after the underlying incident. A

Park Police officer had observed Briley and another man engaging

in sexual activities in the same SUV. He arrested both men and

faced no resistance. At trial, the government sought to

introduce evidence of the March arrest to show Briley’s reckless

17
intent for the disorderly conduct alleged in Count 4. 2 We do not

think this evidence should have been admitted. But given the

overwhelming evidence from the underlying January incident, we

find no reversible error.

A.

Under Rule 404(b), “[e]vidence of a crime, wrong, or other

act is not admissible to prove a person’s character in order to

show that on a particular occasion the person acted in

accordance with the character.” Fed. R. Evid. 404(b)(1). Such

evidence, however, “may be admissible for another purpose, such

as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.”

Id. 404(b)(2).

Rule 404(b) is a rule of inclusion. United States v.

Lespier, 725 F.3d 437, 448 (4th Cir. 2013); see United States v.

2
The National Park Service regulation invoked in Count 4
provides:

A person commits disorderly conduct when, with intent
to cause public alarm, nuisance, jeopardy or violence,
or knowingly or recklessly creating a risk thereof,
such person . . . [u]ses language, an utterance, or
gesture, or engages in a display or act that is
obscene, physically threatening or menacing, or done
in a manner that is likely to inflict injury or incite
an immediate breach of the peace.”

36 C.F.R. § 2.34(a)(2).

18
Van Metre, 150 F.3d 339, 349 (4th Cir. 1998) (noting that the

Rule’s list of allowable purposes is “illustrative, rather than

exclusive”). As we have long maintained, the Rule’s inclusive

nature militates toward “‘admitting all evidence of other crimes

or acts except that which tends to prove only criminal

disposition.’” Lespier, 725 F.3d at 448 (quoting United States

v. Rooks, 596 F.3d 204, 211 (4th Cir. 2010)); see, e.g., United

States v. Masters, 622 F.2d 83, 85 (4th Cir. 1980). Rule 404(b)

permits the admission of evidence of not only prior but also

subsequent acts. United States v. Mohr, 318 F.3d 613, 617 (4th

Cir. 2003).

We do not overturn Rule 404(b) rulings lightly. District

judges enjoy broad discretion to determine what evidence should

be admitted under the Rule, which resides at the core of the

trial judge’s function of handling evidentiary challenges. Under

this standard, a district court abuses its discretion “‘when it

acts arbitrarily or irrationally, fails to consider judicially

recognized factors constraining its exercise of discretion,

relies on erroneous factual or legal premises, or commits an

error of law.’” Rooks, 596 F.3d at 210 (quoting United States v.

Delfino, 510 F.3d 468, 470 (4th Cir. 2007)).

We review evidentiary determinations for harmless error.

United States v. Madden, 38 F.3d 747, 753 (4th Cir. 1994). A

nonconstitutional error ceases to be harmless if it had a

19
“substantial and injurious effect or influence in determining

the jury’s verdict.” Kotteakos v. United States, 328 U.S. 750,

776 (1946). The core of the inquiry is whether the error

affected the defendant’s substantial rights. See Fed. R. Crim.

P. 52(a). We do not reverse evidentiary rulings for

inconsequential technicalities. Rather, “reversal is reserved

for more serious errors that affect substantial rights or that

directly affect the outcome of a case.” United States v.

Ferguson, 752 F.3d 613, 619 (4th Cir. 2014).

B.

While Rule 404(b) is an inclusive rule, it is not all-

inclusive. The “other bad act” admitted in this instance came

too close to pure propensity evidence.

The relevance of the March 2012 evidence to proving

Briley’s intent or state of mind in January stands in some

question. It is true that we make “no distinction” between prior

and subsequent bad acts under Rule 404(b), United States v.

Lighty, 616 F.3d 321, 352 n.33 (4th Cir. 2010), with the timing

of the act often being a matter of evidentiary weight for the

jury, see Huddleston v. United States, 485 U.S. 681, 689 (1988);

United States v. Hadaway, 681 F.2d 214, 217-18 (4th Cir. 1982).

And the January and March episodes do share some similar

features. Both times, the Park Police found Briley engaging in

20
sexual conduct, in the same vehicle, in the same general area.

At another level, however, the character of the acts was quite

different. The March incident was largely uneventful. When

confronted by Officer Wong, Briley did not resist arrest. The

January incident, on the other hand, involved a violent

confrontation that went to the heart of the obstructive activity

charged under 18 U.S.C. § 111.

The evidence from January formed a compelling and

consistent case against Briley on all four counts. The jury

heard about the encounter and the ensuing altercation with Park

Police in painstaking and vivid detail. The January evidence

described Briley’s meeting with his companion and their

preparations to engage in sexual relations. It showed the

extended struggle between Briley and the crew of officers trying

to detain him. It conveyed his determined resistance to the

officers both inside and outside the vehicle. It revealed the

damaging injuries he inflicted on the officers. As officer after

officer took the witness stand, and as Briley’s companion

recounted the events inside the vehicle, the jury learned about

the January incident from every angle.

The government introduced the March arrest in support of

the disorderly conduct charge in Count 4. But even with a

recognition of the uncertainties of trial outcomes, the

prosecution had to know it had more than enough evidence from

21
the January incident alone to prove that Briley had engaged in

an unlawful act at the Marina, in violation of the disorderly

conduct regulation. The district court told the jury that Briley

could be deemed to have acted recklessly, as required by 36

C.F.R. § 2.34(a)(2), if he knew that the obscene act was

“inappropriate” and that it would “cause public alarm,

[nuisance], jeopardy, or violence if it was seen.” J.A. 430.

From the January incident, there was more than ample evidence

for a rational jury to conclude that Briley’s conduct cleared

that modest bar. With so few lingering questions about Briley’s

criminal conduct in January, and the evident ability of intimate

sexual activities in public places to constitute disorderly

conduct on their own terms, the need to introduce the March

incident seems dubious at best. See United States v. Queen, 132

F.3d 991, 997 (4th Cir. 1997) (listing necessity as a factor in

Rule 404(b) analysis).

Also relevant in the Rule 404(b) analysis is the comparison

of the probative value and prejudicial nature of the evidence.

See Fed. R. Evid. 403; Queen, 132 F.3d at 997 (holding that, as

part of the Rule 404(b) inquiry, “the evidence’s probative value

must not be substantially outweighed by confusion or unfair

prejudice in the sense that it tends to subordinate reason to

emotion in the factfinding process”). In Briley’s case, there

was some slight probative value to the evidence. The March

22
arrest did bear some connection to the purposes for which it was

offered, in the sense that it underscored Briley’s recklessness,

as required by the disorderly conduct regulation.

On the other hand, there was a risk in using the March

incident at trial. That risk inheres in all propensity evidence,

namely that the government could deploy the subsequent act as a

character smear that might actually infect the entirety of the

trial -- by portraying the defendant in the eyes of the jury as

a person deserving of particular condemnation almost

irrespective of the various forms of misconduct of which he

stood accused. But of course Rule 404(b) expressly forbids

evidence to be used in that way. The March evidence carried a

risk of shifting the trial’s focus away from the confrontation

whose violent and injurious nature had given rise to the

prosecution, and toward the portrayal of a character of general

disrepute. Given that there was more than enough evidence from

the January incident to support all the charges in the

indictment, including the disorderly conduct charge, the need to

push the defendant’s personal habits and inclinations forward

raises Rule 403 concerns.

The trouble with such character wounds is that they bleed,

in the sense that “bad people” may be presumed by the factfinder

to commit no end of criminal acts. The government unquestionably

had every right to charge Count 4. But to use this least serious

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charge as a conduit for bringing in unseemly acts not charged in

the indictment -- which then might affect consideration of the

more serious charges -- is a different matter. Shining such a

bright light on Briley’s other sexual activities risked

directing the jury’s attention to the wrong place.

Nevertheless, the evidence from the beginning to the end of

the January incident is compelling and incriminating as to all

the charged counts. When viewed in the context of the barrage of

evidence from the January incident -- for the disorderly conduct

charge as well as the three § 111 charges -- the error in

admitting the March evidence was plainly harmless.

An array of witnesses gave clear, compelling, and

consistent accounts about Briley’s actions. Officers Brancato,

Usher, Mace, and Twiname each testified about the events of that

January afternoon. Brancato and Usher discussed their

surveillance of Briley and the other man, and they described

Briley’s sexual conduct that was visible from outside, through

the SUV’s window. The four officers recounted the details of the

altercation that followed -- the initial approach, the swift

compliance by Briley’s companion, Briley’s refusal to exit, his

fierce resistance against being removed from the vehicle, his

injurious strikes against the officers, the continued

skirmishing after he exited the vehicle, and his eventual

arrest. Briley’s companion (who had signed an informal immunity

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agreement) also testified about his interactions with Briley and

the officers. He related his personal history with Briley, their

meeting in the Marina parking area, their preparations for

sexual relations, their efforts to avoid detection, and the

confrontation with the Park Police.

It is plain that the jury credited the version of the facts

put forward by the Park Police and by Briley’s own companion and

disbelieved Briley’s version of the incident, namely that he did

not punch or kick anyone and was unaware the individuals were

police officers. A plethora of testimony established that Briley

had engaged in intimate sexual activities in a public place, and

that he had forcibly resisted and struck the officers trying to

arrest him. The district court, for its part, properly

instructed the jury under § 111 and the disorderly conduct

regulation and offered a range of other cautionary directives.

We can say, “with fair assurance, after pondering all that

happened without stripping the erroneous action from the whole,”

that the jury’s consideration was not “substantially swayed” by

Officer Wong’s testimony about the March incident. Kotteakos,

328 U.S. at 765. The absence of necessity for admitting “other

bad acts” evidence will not invariably link up with a finding of

harmless error, but here we are confident that the error

affected neither Briley’s substantial rights nor the outcome of

the case. See Ferguson, 752 F.3d at 619. Despite the evident

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dangers of admitting the evidence, we are not left in “grave

doubt” about its impact. Kotteakos, 328 U.S. at 765. Our charge

is to detect wrongs that trenched upon a defendant’s substantial

rights, and the error did not do so here.

IV.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED

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