UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50922
United States of America,
Plaintiff-Appellee,
v.
Moses Ramirez
Defendants-Appellant,
Appeal from the United States District Court for the
Western District of Texas
November 9, 2000
Before GOODWIN*, GARWOOD, and JONES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Moses Ramirez appeals his conviction for forcibly
assaulting a federal officer in violation of 18 U.S.C. § 111.
Ramirez was convicted after a jury trial and was sentenced to
thirty-six months of imprisonment, to be followed by one year of
supervised release. Ramirez now challenges his convictions,
claiming that the evidence is insufficient to sustain his
conviction and that his indictment was constitutionally inadequate.
We affirm Ramirez’s conviction.
*
Circuit Judge of the Ninth Circuit, sitting by designation.
The facts of this case are straightforward, albeit
unpleasant. On January 12, 1998, Ramirez was an inmate in the
special housing unit of the Federal Correctional Institution (FCI)
located in Bastrop, Texas. Senior Corrections Officer Stephen
Griffin was retrieving the inmates breakfast trays through a small
“trap door” in each cell’s door. When Officer Griffin attempted to
collect Ramirez’s tray, Ramirez hurled a cup filled with a urine-
feces mixture at Griffin, striking Griffin’s chest and lower body
regions. As Griffin attempted to close the trap door, Ramirez
hurled a second cup of the urine-feces mixture at him, this time
striking all over Griffin’s body, from the neck down. As applicant
hurled the second cup of the substance at Griffin he hurled a crude
verbal insult. Ramirez’s comment was an apparent reference to an
incident report filed by Officer Griffin the previous day,
describing an altercation that Ramirez had initiated with guards.
Following the urine-feces hurling incident, Officer
Griffin was examined by medical professionals, who determined that
he had not been injured. This examination also revealed that
Griffin did not have any open lesions that had been exposed to the
substance, and that none of his sensitive mucous membranes had been
hit.
Ramirez now appeals his conviction stemming from this
disgusting incident, arguing that the evidence presented was
insufficient to support his conviction for forcibly assaulting a
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federal officer. This court reviews the sufficiency of evidence to
determine whether any reasonable jury could have found that the
evidence established guilt beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); U.S. v. Martinez, 975 F.2d 159,
160-61 (5th Cir. 1992). In performing this “reasonableness of the
jury” analysis, this court views all evidence in the light most
favorable to the Government. U.S. v. Shabazz, 993 F.2d 431, 441
(5th Cir. 1993); U.S. v. Alonzo, 681 F.2d 997, 1000 (5th Cir.
1982). All reasonable inferences are construed in accordance with
the jury’s verdict, and the jury is solely responsible for
determining the weight and credibility of the evidence. Martinez,
975 F.2d at 161.
The statute governing this case is 18 U.S.C. § 111,
which, in relevant part, punishes anyone who “forcibly assaults,
resists, opposes, impedes, intimidates, or interferes with [a
federal officer] while engaged in or on account of the performance
of official duties.” The statute goes on to set three different
levels of punishment, depending on the nature and severity of the
assault. The statute dictates that a violator
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 in all
other cases, be fined under this title or imprisoned not
more than three years, or both.
The statute then announces an “enhanced penalty” of up to ten years
imprisonment for assaults wherein the violator “uses a deadly or
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dangerous weapon . . . or inflicts bodily injury.” 18 U.S.C. §
111(2)(b).
While the language of the statute seems to suggest that
there are three different punishments for one crime, this circuit
has interpreted 18 U.S.C. § 111 to create three separate offenses:
“(1) simple assault; (2) more serious assaults but not involving a
dangerous weapon; and (3) assault with a dangerous weapon.” United
States v. Nunez, 180 F.3d 227, 233 (5th Cir. 1999). The parsing of
18 U.S.C. 111 into three separate offense was guided by and
consistent with the Supreme Court’s recent decision in Jones v.
United State, 526 U.S. 227 (1999).1
While Nunez properly understood 18 U.S.C. 111 as creating
three separate offenses rather than a single offense with three
punishments, the precise contours of these three independent
offenses are not well defined by either the statute or by Nunez.
Nor have subsequent decisions in this circuit clarified the
differences between “simple assault,” “more serious assaults not
involving a dangerous weapon,” and “assaults with a dangerous
weapon.” See Nunez, 180 F.3d at 233. However, a sister circuit,
the Second, has offered definitions of the three forms of assault
under 18 U.S.C. § 111
1
The Nunez panel modeled its interpretation of 18 U.S.C. § 111 on the Supreme
Court’s construction of 18 U.S.C. § 2119 in Jones: “Jones teaches us to avoid
encroaching on a defendant’s Fifth Amendment rights by construing statutes setting out
separate punishments as creating separate, independent criminal offenses rather than
a single criminal offense with different punishments. . . . Likewise, we read 18 U.S.C.
§ 111 as creating three separate offenses . . . .
4
[F]or practical purposes § 111 creates three distinct
categories of conduct: simple assault, which, in accord
with the common law (1) definition, does not involve
touching; (2) “all other cases,” meaning assault that
does involve contact but does not result in bodily injury
or involve a weapon; and (3) assaults resulting in bodily
injury or involving a weapon.
United States v. Chestaro, 197 F.3d 600, 606 (2nd Cir. 1999). We
find this to be a reasonable construction of the statute.
First, while 18 U.S.C. § 111 uses the term “simple
assault,” this phrase is not defined anywhere in the federal
criminal code, nor in the decisions of this circuit. Nonetheless,
a judicial interpretation of Congress’s use of the phrase “simple
assault” is available in the context the statute proscribing
assaults within the special maritime and territorial jurisdiction
of the United States, 18 U.S.C. § 113. As used in this frequently
interpreted statute, “simple assault” has been held to “embrace the
common law meaning of the term.” United States v. Stewart, 568
F.2d 501, 504 (6th Cir. 1978). See United State v. Estrada-
Fernandez, 150 F.3d 491, 494 n.1 (5th Cir. 1998). It is a well
established principle of statutory construction that Congress
intends to adopt the common-law meaning of statutory terms, absent
contrary indications. United States v. Shabani, 513 U.S. 10, 13
(1994). Because Congress was silent as to the meaning of “simple
assault” when it amended 18 U.S.C. § 111 in 1994 to contain the
term, the canons of statutory interpretation demand that we assign
“simple assault” its common law meaning. At common law, “simple
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assault” was, of course, an “attempted battery” or the “placing of
another in reasonable apprehension of a battery.” See LaFave &
Scott, Substantive Criminal Law § 7.16 (1986). Thus at common law
“simple assault” did not involve any physical contact.
With “simple assault” having its common law meaning under
18 U.S.C. 111, “all other cases” refers to those assaults
contemplated by the statute which do involve physical contact, but
do not involve a deadly weapon or bodily injury. Thus, the
statutory meaning of “all other cases” is arrived at by a simple
process of elimination. Any physical contact which by which a
person “forcibly assaults, resists, impedes, intimidates, or
interferes with” a federal officer in the performance of his duties
but which does not involve a deadly weapon or bodily injury, falls
into the “all other cases” category under 18 U.S.C. § 111 and is
punishable by up to three years imprisonment.
Given this definition of “all other cases” under 18
U.S.C. § 111, Ramirez’s argument that the evidence against him is
insufficient to sustain his conviction because the Government did
not present evidence of bodily harm and/or the creation of
apprehension of imminent harm does not contradict his conviction
under this intermediate form of assault. Neither bodily harm nor
the creation of apprehension is a requirement for an “all other
cases” assault under 18 U.S.C. 111. By hurling the urine-feces
mixture onto Officer Griffin, Ramirez committed an assault which
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involved physical contact, but not a deadly weapon or bodily harm.
Ramirez’s vile attack on Officer Griffin is thus the very sort of
physical but non-injurious assault contemplated by the “all other
cases” provision of the statute.
There are ample precedents, from this circuit and others,
holding that actions such as Ramirez’s constitute assault on a
federal officer in violation of 18 U.S.C. § 111. See, e.g. United
States v. Fernandez, 837 F.2d 1031, 1035 (11th Cir. 1988) (bumping
assistant United States Attorney while repeatedly advising the
attorney to “watch his back” constitutes assault on a federal
officer); United States v. Frizzi, 491 U.S. 1231, 1232 (1st Cir.
1974) (spitting in the face of a mail carrier sufficient for
assault on a federal officer); United States v. Sommerstedt, 752
F.2d 1494 (9th Cir. 1985)(holding that the use of any force
whatsoever can be an assault on a federal officer); United States
v. Hightower, 512 F.2d 60, 61 (5th Cir. 1975)(grabbing a federal
wildlife agent’s jacket was assault on a federal officer); United
States v. Hernandez, 921 F.2d 1569, 1576 (11th Cir. 1991)(poking
IRS agent in the chest in a threatening manner is assault on a
federal officer). Consistent with these precedents and viewed in
the light most favorable to the Government, the evidence presented
is more than sufficient to sustain Ramirez’s conviction for an “all
other cases” assault on a federal officer.
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Ramirez also contends that his indictment failed to
notify him as to whether he was charged with simple assault or a
more serious form of assault. Ramirez thus argues that his
indictment omitted an essential element of the offense (i.e. which
form of assault he was being charged with) and was therefore
constitutionally deficient. While Ramirez did not raise this
argument in the district court, the sufficiency of an indictment is
a jurisdictional matter and may be raised for the first time on
appeal. U.S. v. Brown, 217 F.3d 247, 256, n.5 (5th Cir. 2000);
U.S. v. Fitzgerald, 89 F.3d 218, 221 (5th Cir. 1996). If an
objection to the indictment is raised for the first time on appeal,
as here, and the appellant does not assert prejudice, then the
indictment must be read with the maximum liberality. Brown, 217
F.3d at 256; Fitzgerald, 89 F.3d at 221 (5th Cir. 1996). We must
find the indictment sufficient unless it is so defective that by
any reasonable construction, it fails to charge the offense for
which the defendant is convicted. Brown, 217 F.3d at 256;
Fitzgerald, 89 F.3d at 221.
To pass constitutional muster, an indictment must allege
all of the elements of the offense charged. See United States v.
Shelton, 937 F.2d 140, 142 (5th Cir. 1991). In determining the
sufficiency of an indictment, “the law does not compel a ritual of
words.” U.S. v. Richards, 204 F.3d 177, 191 (5th Cir. 2000).
Further, “the test of the validity of an indictment is not whether
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the indictment could have been framed in a more satisfactory
manner, but whether it conforms to minimum constitutional
standards.” Id. (internal quotation marks and citations omitted).
An indictment is constitutionally adequate where it “contains the
elements of the offense charged and fairly informs a defendant of
the charge against which he must defend, and, second, enables him
to plead an acquittal or conviction in bar of future prosecutions
for the same offense.” Hamling v. U.S., 418 U.S. 87, 117 (1974).
Ramirez argues that his indictment was constitutionally
deficient because it failed to allege all of the elements of the
offense with which Ramirez was charged, thereby failing to give him
notice of the charge. More specifically, Ramirez argues that the
indictment did not notify him as to which form of assault he was
charged with under 18 U.S.C. § 111. In relevant part, the
indictment alleged that Ramirez
knowingly and intentionally did forcibly assault Steven
Griffin, a Senior Corrections Officer at the Federal
Corrections Institution, Bastrop, Texas, an employee of
an agency of the United States Government, by striking
said Steven Griffin on his body with urine and feces,
while said Steven Griffin was engaged in and on account
of the performance of his official duties, in violation
of Title 18, United States Code, Section 111.
Reading this indictment with “maximum liberality” it
seems clear that this instrument can be reasonably construed to
charge Ramirez with the offense of which he was ultimately
convicted, an “all other cases” assault involving physical contact
but not bodily harm or a weapon. See U.S. v. Richards, 204 F.3d
9
177, 191 (5th Cir. 2000). First, Ramirez’s indictment follows the
language of 18 U.S.C. § 111: the key phrases “forcibly assault” and
“while engaged in or on account of the performance of official
duties” appear in both the statute and the indictment. Generally,
an indictment which follows the language of the statute under which
it is brought is sufficient to give a defendant notice of the crime
of which he is charged. See, e.g. Bennett v. U.S., 285 F.2d 567,
571-72 (5th Cir. 1961). Second and more importantly, a detailed
description of the assault which Ramirez is alleged to have
committed is contained in the indictment. The indictment
specifically described the offensive physical contact inflicted
upon Officer Griffin by Ramirez.
While it is true that the indictment did not specifically
use the “all other cases” language or label Ramirez’s alleged
assault as such, by both invoking the statute and describing the
offensive physical contact, the indictment adequately informed
Ramirez of the charge he was facing. Ramirez could have easily
combined the language of the cited statute with the details of the
physical contact to realize that his alleged assault fell into the
“all other cases category.” While a better indictment might have
included the “all other cases” language, Ramirez is not
constitutionally entitled to a perfect indictment, merely an
adequate one. See Richards, 204 F.3d at 191; U.S. v. Wilson, 884
F.2d 174, 179 (5th Cir. 1989). Read with “maximum liberality”
10
there is no doubt that Ramirez’s indictment met the minimum
constitutional standards.
Because an “all other cases” assault on a federal officer
in violation of 18 U.S.C. § 111 does not require bodily injury or
the creation of apprehension, and because the indictment adequately
informed Ramirez of the charges against him, Ramirez’s conviction
is AFFIRMED.
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