PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 11-4065
AARON THOMAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(1:10-cr-00050-IMK-1)
Argued: December 9, 2011
Decided: January 25, 2012
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opin-
ion, in which Judge Wilkinson and Judge Shedd joined.
COUNSEL
ARGUED: Martin Patrick Sheehan, SHEEHAN &
NUGENT, PLLC, Wheeling, West Virginia, for Appellant.
Brandon Scott Flower, OFFICE OF THE UNITED STATES
ATTORNEY, Clarksburg, West Virginia, for Appellee. ON
2 UNITED STATES v. THOMAS
BRIEF: William J. Ihlenfeld, II, United States Attorney,
Wheeling, West Virginia, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Aaron Thomas, an inmate at the United States Penitentiary
Hazelton in Preston County, West Virginia ("Hazelton"),
appeals his convictions and sentence for two counts of
assaulting a correctional officer in violation of 18 U.S.C.
§ 111. Thomas raises an array of challenges. We find none
meritorious and so affirm the judgment of the district court in
all respects.
I.
At the time of the offenses at issue here, Thomas was serv-
ing a 300-month sentence imposed in 1995 for possession
with intent to distribute cocaine base; he had already amassed
forty-two disciplinary infractions at various federal institu-
tions. Accordingly, Thomas was housed in Hazelton’s A-1
Unit, a location reserved for inmates with prior disciplinary
problems. The A-1 Unit has a daily 4:00 p.m. standing count,
during which correctional officers check each cell to ensure
that all inmates are present and not experiencing any medical
emergencies.
On January 26, 2009, correctional officers Lacy Richards
and William Goss conducted the 4:00 p.m. count. When they
arrived at Thomas’s cell they found him lying on the floor.
Officer Richards ordered Thomas to stand, but Thomas
refused her repeated commands. Eventually, the officers
moved on and resumed their count.
In addition to conducting the count, Officer Richards’s
duties required her to perform five cell searches per shift. On
UNITED STATES v. THOMAS 3
that day, she decided to search the cells of the inmates who
had refused to stand for the 4:00 p.m. count. When Officer
Richards entered Thomas’s cell to begin her search, Thomas’s
cellmate, Nathaniel Tarver, followed her. Tarver asked Offi-
cer Richards if he could remove some legal mail. Officer
Richards refused and ordered Tarver to leave because inmates
are not permitted in the cell during a search. Tarver eventually
complied and went to find Thomas and inform him that Offi-
cer Richards was searching their cell. Upon hearing the news,
Thomas returned to the cell.
Officer Richards testified that when Thomas returned to the
cell, he blocked the door with his body and refused to comply
with her repeated orders to leave. The officer testified that
Thomas threatened her, telling her she was "going to die in
this cell tonight" and that she "would be leaving in a body
bag." Feeling threatened, Officer Richards radioed Officer
Aaron Wassick, also on duty in the A-1 Unit, for assistance.
When Officer Richards attempted to leave the cell, Thomas
pushed her with both hands. Officer Richards then radioed a
general alarm, which went to all staff radios. Before any offi-
cers could respond, however, Officer Richards testified that
Thomas punched her in the face. Officer Wassick similarly
testified that as he ran to the cell, he saw Thomas strike Offi-
cer Richards. Officer Wassick and other officers eventually
restrained Thomas, who continued verbal abuse of the offi-
cers.
A grand jury indicted Thomas on two counts of assault in
violation of 18 U.S.C. §§ 111(a) and (b).1 Count One alleges
1
As is relevant here, under 18 U.S.C. § 111(a), an individual commits
a felony when he "forcibly assaults, resists, opposes, impedes, intimidates,
or interferes with" a federal official "engaged in . . . the performance of
official duties," and "such acts involve physical contact with the victim of
that assault or the intent to commit another felony." The offender receives
an enhanced penalty under 18 U.S.C. § 111(b) when, in the commission
of the acts proscribed by § 111(a), he "uses a deadly or dangerous weapon
. . . or inflicts bodily injury."
4 UNITED STATES v. THOMAS
that Thomas "threaten[ed] to kill" Richards while Count Two
alleges that Thomas "str[uck] her." Thomas waived his right
to a jury trial and proceeded to a bench trial.
The primary evidence at trial came from the testimony,
described above, of Officers Richards, Goss, and Wassick.
The court also considered a hallway video of the incident,
which provided a limited view—showing only that Thomas
took about one step into the cell and that the entire encounter
lasted approximately thirty-three seconds. The Government
additionally introduced evidence of Officer Richards’s inju-
ries, including photographs of her red and swollen face, and
information about her treatment at the Hazelton infirmary and
Ruby Memorial Hospital, where doctors prescribed pain med-
ication for her injuries.
The testimony of inmates Thomas and Tarver constituted
the defense case. Thomas testified that he did not refuse to
stand for the count. He acknowledged returning to his cell
after the count and, at that time, raising his voice to Officer
Richards. Thomas denied, however, either threatening Officer
Richards or physically assaulting her. Indeed, Thomas testi-
fied that Officer Richards attempted to assault him. Tarver
testified that he had a limited view of the events (at times with
his back to the cell), but that he never heard Thomas raise his
voice or enter more than a step inside the cell.
The district court found neither Thomas nor Traver "en-
tirely credible." The court specifically found Thomas not
credible as to: (1) what happened when he returned to the cell,
(2) Officer Richards’s alleged assault on him, and (3) his
claims that he "never touched, struck or threatened" Officer
Richards. The district court further found that Thomas made
statements to Officer Richards like "you’re not going to get
out of here alive" that put her in fear of her safety and that he
had the ability to carry out these threats given that he was
"physically larger and stronger" than Officer Richards and no
other officers were present when he made these threats. The
UNITED STATES v. THOMAS 5
court also found that Thomas’s "physical attack" on Officer
Richards "followed on the threat" and resulted in redness,
swelling, and bruising that required medical treatment. The
district court then found that, as to Count One, Thomas was
guilty of threatening to kill Officer Richards with intent to
commit another felony (the ensuing physical assault) in viola-
tion of § 111(a), but not guilty of imposing injury on her in
violation of § 111(b). As to Count Two, the court found
Thomas had inflicted bodily injury on Officer Richards and so
violated both § 111(a) and § 111(b). The court sentenced
Thomas to 96 months imprisonment on Count One and 108
months on Count Two, to run concurrently with each other
but consecutive to Thomas’s previous sentence.
II.
Thomas first raises two indictment challenges. Because
Thomas failed to raise these challenges in the district court,
we review for plain error. See, e.g., United States v. Rendel-
man, 641 F.3d 36, 43 & n.9 (4th Cir. 2011); United States v.
King, 628 F.3d 693, 699 (4th Cir. 2011). "[B]efore an appel-
late court can correct an error not raised at trial, there must be
(1) error, (2) that is plain, and (3) that affect[s] substantial
rights." Johnson v. United States, 520 U.S. 461, 466-67
(1997) (internal quotation marks omitted). Even if all three of
these conditions are met, "an appellate court may . . . exercise
its discretion to notice a forfeited error . . . only if (4) the error
seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings." Id. at 467 (internal quotation marks
omitted). Neither of the asserted indictment errors in this case
meets this rigorous standard.
A.
Thomas contends that we should recognize as plain error
the failure of Count One of the indictment to allege an intent
to commit another felony as required by 18 U.S.C. § 111(a)
and the failure of Count Two to allege infliction of bodily
6 UNITED STATES v. THOMAS
injury as required by 18 U.S.C. § 111(b).2 The Government
concedes that these defects were plain errors, but contends
that they did not "seriously affect[ ] the fairness, integrity, or
public reputation of [the] judicial proceedings." Johnson, 520
U.S. at 467. We must agree.
Officer Richards offered detailed testimony of the threats
and injuries inflicted by Thomas. Officer Wassick also testi-
fied that Thomas struck Officer Richards in the face. More-
over, three other officers testified to observing those injuries,
which were also documented in medical records. In the face
of this evidence, the district court understandably found the
testimony of defendant Thomas and his cellmate, Tarver,
denying the threats and assault not credible. In doing so, the
court made specific findings as to Thomas’s threats to kill
Officer Richards and the bodily injury his physical attack
caused her. These findings clearly satisfy the elements miss-
ing from the indictment.
Moreover, in this case, we need not attempt to weigh the
Government’s evidence against that offered by the defendant.
The experienced district judge, as the trier of fact, expressly
concluded that the defendant presented no credible evidence.
Indeed, the court found defendant Thomas so clearly lied at
trial that it imposed a two-level obstruction of justice
enhancement to his sentence.
In sum, while we do not discount the seriousness of the
errors in this indictment, we cannot find them grounds for
reversal given the overwhelming evidence of Thomas’s guilt.
2
Thomas also attempts to argue that trial counsel preserved these chal-
lenges. Examination of the trial transcript, however, belies this assertion.
The only discussion of the allegations in Count One simply clarified that
the indictment’s reference to a verbal threat required the Government to
prove that particular act in order to secure a conviction. While the district
court appears to have invited defense counsel to address Count Two’s
omission of the "bodily injury" element, the record does not indicate that
counsel ever made such an argument.
UNITED STATES v. THOMAS 7
To do so would itself seriously affect the "fairness, integrity,
or public reputation of judicial proceedings." Johnson, 520
U.S. at 467.
B.
Thomas also argues that the district court plainly erred in
failing to find the indictment was "‘multiplicitous,’ [in] that
a single offense was charged in multiple—here, two—
counts." United States v. Goodine, 400 F.3d 202, 207 (4th Cir.
2005). Multiplicitous indictments are invalid because they
risk assigning "multiple punishments for the same crime." Id.
Thomas argues that because the events at issue lasted only
thirty-three seconds and involved a single location and victim,
they can support only a single assault.
Thomas heavily relies on Ladner v. United States, 358 U.S.
169 (1958), in which the Supreme Court interpreted the statu-
tory predecessor to 18 U.S.C. § 111. In Ladner, the Court
rejected the view that "the wounding of . . . two officers
result[ing] from a single discharge of the gun" constituted
"two assaults." Id. at 178. Rather, the Court held that a single
shot fired at multiple officers constituted a single offense. Id.;
see also United States v. Feola, 420 U.S. 671, 677-78 (1975)
(discussing Ladner). Ladner remains good law.
Courts have consistently applied Ladner to determine if a
course of conduct warrants multiple assault charges by deter-
mining "whether there is more than one act resulting in the
assaults, not whether more than one federal officer is injured
by the same act." United States v. Theriault, 531 F.2d 281,
285 (5th Cir. 1976); see also United States v. Hopkins, 310
F.3d 145, 152 (4th Cir. 2002) (because defendant "engaged in
more than one act of forcibly assaulting . . . a federal officer,"
the indictment was not "duplicative"); United States v. Rivera
Ramos, 856 F.2d 420, 422 (1st. Cir. 1988) (looking to "the
number of distinguishable acts of assault").
8 UNITED STATES v. THOMAS
An indictment may divide a course of conduct into separate
assaults only when the Government demonstrates that "the
actions and intent of [the] defendant constitute distinct succes-
sive criminal episodes, rather than two phases of a single
assault." United States v. Segien, 114 F.3d 1014, 1022 (10th
Cir. 1997), abrogation on other grounds recognized by United
States v. Hathaway, 318 F.3d 1001, 1006 (10th Cir 2003); see
also United States v. Shumpert Hood, 210 F.3d 660, 663 (6th
Cir. 2000); Smith v. United States, 418 F.2d 1120, 1121 (D.C.
Cir. 1969). Courts look to a variety of factors to determine if
a series of acts constitute more than mere phases of a single
assault and so can support multiple assault charges. See, e.g.,
Segien, 114 F.3d at 1022 (evidence of "different events, sepa-
rated in both time and location"); United States v. Hodges,
436 F.2d 676, 678 (10th Cir. 1971) (assailant gave each offi-
cer "individual attention, and in succession").
Here, in sharp contrast to Ladner, the district court deter-
mined that Thomas committed multiple acts—both verbally
threatening Officer Richards and punching her in the face.
Moreover, the Government offered evidence that established
significant intervening acts between the verbal threat and the
physical assault. After the verbal threat, Officer Richards
radioed Officer Wassick for assistance. Then, after Thomas
pushed her, Officer Richards sounded a general assistance
alarm. Thomas testified that he understood the significance of
both of these assistance calls. After both of these calls for
assistance, Thomas physically assaulted Officer Richards.
Thus between the times of Thomas’s two assaults of Officer
Richards (one verbal and one physical), three events inter-
vened –- (1) Officer Richards radioed Officer Wassick for
assistance, (2) Thomas pushed Officer Richards, and (3) Offi-
cer Richards then put out a general assistance alarm.
These three intervening events provide sound support for
the conclusion that Thomas’s assaults were distinct. While
Thomas verbally assaulted Officer Richards in reaction to her
search of his cell, he physically assaulted her in reaction to
UNITED STATES v. THOMAS 9
her refusal to be deterred by his push and her two calls for
assistance. Thomas’s deliberate decision to escalate the con-
frontation in the face of new factual circumstances substanti-
ates the propriety of charging two distinct assaults. For this
reason, the indictment was not multiplicitous.3
III.
Next, Thomas argues that the district court improperly sus-
tained hearsay objections to his testimony, thereby denying
him the ability to adequately present his defense. We review
a district court’s evidentiary rulings for abuse of discretion.
United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010).
"A court has abused its discretion if its decision ‘is guided by
erroneous legal principles’ or ‘rests upon a clearly erroneous
factual finding.’" Id. (internal quotation marks omitted).
The first challenged hearsay ruling occurred during Thom-
as’s testimony describing his reaction when Tarver informed
him of Richards’s search of their cell. Thomas testified:
I was preparing to wash my clothes and I noticed
that my cellie was coming toward the shower so I
moved some of my clothes to see what he was doing
and he was like, told me that Ms. Richards was shak-
ing the cell down. He knows the situation far as me
and Ms. Richards prior to this because I had conver-
sated [sic] with him.
3
Thomas contends that if we find that his trial counsel failed to preserve
his contentions as to any indictment error, we should find that counsel was
constitutionally ineffective. We have repeatedly held that unless a claim
of ineffective assistance of counsel conclusively appears in the record, we
will not address it on direct appeal, but only on collateral review. United
States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Ineffectiveness
of trial counsel in this case does not "conclusively appear from the
record," and Thomas failed to raise this issue in his opening brief. Accord-
ingly, we decline to address it.
10 UNITED STATES v. THOMAS
The district court then sustained a hearsay objection to testi-
mony regarding what Thomas told Tarver. Thomas now
claims that his testimony was not intended to assert the truth
of his statements—which would qualify as hearsay under Fed-
eral Rule of Evidence 801(c)—but instead was only meant to
establish his state of mind. We find no reversible error in pre-
venting Thomas from testifying in this manner. Thomas could
(and earlier did) testify directly (rather than through his state-
ments to Tarver) as to his prior history with Richards.
Thomas also challenges exclusion of his testimony regard-
ing threats that an officer known as "Big Show" made to
Thomas after Thomas was restrained. Thomas again argues
that these threats were not hearsay because they were not
intended to prove the truth of the matter but instead went to
Thomas’s state of mind. Regardless of the intended purpose
of these statements, this testimony was properly excluded
because it was not relevant. See Fed. R. Evid. 401 (defining
relevant evidence as tending to make a fact "of consequence
in determining the action" more or less probable). While we
do not discount the seriousness of the alleged threats, they
undisputedly occurred after the assaults on Officer Richards
and after the officers restrained Thomas. Accordingly, these
events bear no relation to whether Thomas violated 18 U.S.C.
§ 111. The district court therefore did not abuse its discretion
in excluding them.
IV.
Finally, Thomas challenges his sentence arguing that the
district court improperly applied U.S.S.G. § 2A2.2
("Aggravated Assault") rather than U.S.S.G. § 2A2.3 ("Minor
Assault"). This asserted error, however, is premised on Thom-
as’s contention that he was improperly convicted of enhanced
felony assault under 18 U.S.C. § 111(b) because the indict-
ment omitted material elements of that crime. Having con-
cluded that Thomas was properly convicted under § 111(b),
we therefore also conclude that he was properly sentenced
UNITED STATES v. THOMAS 11
under § 2A2.2. See U.S.S.G. § 2A2.2(b)(6) (applying 2 level
enhancement if "defendant was convicted under 18 U.S.C.
§ 111(b)").
V.
For the reasons set forth above, we affirm the judgment of
the district court in all respects.
AFFIRMED