[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 17, 2007
No. 06-13429 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20877-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR MARTINEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 17, 2007)
Before BIRCH, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Defendant Oscar Martinez appeals his conviction for forcibly assaulting a
federal officer, in violation of 18 U.S.C. § 111(a)(1). Martinez also appeals the
restitution order in his sentence. After review, we affirm.
I. BACKGROUND
Defendant Martinez is a prisoner at the Federal Detention Center (“FDC”) in
Miami, Florida. A grand jury indicted Martinez for forcibly assaulting a
correctional officer at the FDC by striking the officer’s face and body with a liquid
that was or appeared to be urine, in violation of 18 U.S.C. § 111(a)(1).
A. Trial
At trial, the government called Officer Jorge Giraldo, an FDC Miami
corrections officer. Giraldo described the cells in the Special Handling Unit
(“SHU”), which had a door with a window and a food slot wide enough to put
hands through. Giraldo testified that, on October 25, 2002, he and Officer Daniel
Parodi were bringing linens to the SHU cells when Defendant Martinez, who was
alone in his cell, requested a towel. As Giraldo turned to get the towel, he heard a
commotion and Defendant Martinez yelling, “I got you motherfucker.” Giraldo
saw Martinez standing with his hands outside the food slot, spraying a liquid all
over Parodi. The liquid was in a bottle of VO5.
Giraldo pushed Martinez’s hands back into the cell and closed the food slot.
2
A small amount of the liquid also got on Giraldo’s shirt. Giraldo thought the liquid
was urine because of its smell and because he, after closing the food slot, saw
Martinez urinate into another bottle and say, “I got more for you.” After the
incident, Defendant Martinez apologized to Giraldo for getting urine on him,
stating that the urine was not meant for him. Apparently, the urine was meant for
only Parodi, who was sprayed first.
On cross-examination, Giraldo stated that all areas of the SHU were within
observation of cameras, which were movable. However, Giraldo did not know if
the cameras were turned on or whether, on the date of the incident, they were
facing the cell doors. Giraldo admitted that he did not know whether the incident
had been videotaped.
The government also called Officer Parodi to testify. According to Parodi,
Martinez was angry with him on the day of the incident because Martinez blamed
Parodi for losing his position as an orderly, which had given Martinez special
privileges. Parodi asked Giraldo to assist him with the linen exchange at
Martinez’s cell because he knew Martinez was angry with him and Parodi did not
want problems. As Parodi and Giraldo began to exchange Martinez’s linens,
Defendant Martinez squeezed the liquid contents of a bottle at Parodi. The liquid,
which smelled like urine, covered Parodi’s entire chest and got in his mouth, nose
3
and eyes.
After he sprayed Parodi, Defendant Martinez laughed and said, “I finally got
you, motherfucker.” Martinez then said, “I got more for you, come on in.” Parodi
saw three bottles of what appeared to be urine in Martinez’s cell.
Parodi washed his face, eyes, mouth and chest and went to the FDC Miami
doctor. Parodi explained that he was concerned because he did not know if
Martinez had a communicable disease. After Parodi was evaluated by medical
staff at FDC Miami, he went to a hospital to have a blood check because he did not
know Martinez’s medical history. Parodi has not experienced any health problems
as a result of the incident.
On cross-examination, Parodi testified that cameras were positioned to cover
all areas of the SHU, except inside the cells. However, Parodi was not sure
whether the cameras were always on or if they were supposed to be on. When
asked if an incident such as the one at issue could be on videotape, Parodi
responded, “I believe so.” Parodi did not know if the incident had been videotaped
or if the cameras were connected to a video recording device. The government
rested, and Defendant Martinez presented no witnesses.
B. Closing Arguments
Prior to closing arguments, Defendant Martinez contended that he should be
4
able to argue that the government had failed to produce a videotape of the incident.
The district court ruled that Martinez could not make this argument in closing
because there was no evidence that the cameras in the SHU could record or were
merely for monitoring, or that the cameras had in fact recorded the incident.
C. Jury Instructions
Prior to trial, the government filed a motion requesting that the district court
modify the Eleventh Circuit pattern jury instruction’s definition of forcible assault,
which addresses cases involving threats or attempts but not any actual physical
contact.1 The government requested that “forcible assault” be defined as “an
assault which results in physical contact, but which does not involve a deadly
weapon or bodily harm.”
The government also argued that, because § 111 is a general intent statute,
the pattern jury instruction’s specific intent definition of “willfully” should not
1
Offense Instruction 1.1 of the Eleventh Circuit Pattern Jury Instructions (Criminal)
provides that a defendant can be found guilty under § 111(a)(1) if the following facts are proven
beyond a reasonable doubt: (1) “[t]hat the Defendant ‘forcibly assaulted’ the person described in
the indictment, as that term is hereinafter defined”; (2) “[t]hat the person assaulted was a Federal
officer . . . then engaged in the performance of an official duty, as charged”; and (3) “[t]hat the
Defendant acted knowingly and willfully.” Offense Instruction 1.1 further defines “forcible
assault” in full as “any willful threat or attempt to inflict serious bodily injury upon someone
else, when coupled with an apparent present ability to do so, and includes any intentional display
of force that would give a reasonable person cause to expect immediate and serious bodily harm
or death even though the threat or attempt is not actually carried out and the victim is not
actually injured.”
5
apply. Instead, the government requested that the instruction be modified to state
that the government needed to prove that “the act was done voluntarily and
intentionally and not because of mistake or accident.”
At the close of the evidence, the district court granted the government’s
requests over Defendant Martinez’s objections. After closing arguments, the
district court instructed the jurors as the government requested, as follows:
Title 18, United States Code, Section 111, makes it a federal
crime or offense for anybody to forcibly assault a federal officer while
the officer is engaged in the performance of official duties.
You are instructed that a correctional officer is one of the
federal officers referred to in that law. A defendant can be found
guilty of that offense of assaulting a federal officer only if all the
following facts are proved beyond a reasonable doubt:
First, that the defendant forcibly assaulted the person described
in the indictment as that term is hereafter defined;
Second, that the person assaulted was a federal officer, as
described above, then engaged in the performance of an official duty
as charged;
And third, that the defendant acted knowingly and willfully.
The term forcible assault means an assault which results in
physical contact which does not involve a deadly weapon or bodily
harm.
....
The phrase “knowingly and willfully,” as that phrase is used in
the indictment or in these instructions, means that the act was done
voluntarily and intentionally, and not because of mistake or accident.
(Emphasis added). Martinez renewed his objections to the jury instructions. The
district court again overruled his objections. The jury found Martinez guilty.
D. Sentencing
6
According to the presentence investigation report (“PSI”), Parodi provided
medical bills showing $1,801.63 in losses. Parodi’s losses resulted from visits to
his physician and the emergency room and lab work for testing of diseases that he
could have contracted from Defendant Martinez’s actions. The PSI recommended
that Martinez pay $1,801.63 in restitution.
At sentencing, Martinez objected, arguing that he should not have to pay for
Parodi’s measures to ensure that he was not injured. The district court ordered
Martinez to pay $1,801.63 in restitution. The district court sentenced Martinez to
36 months’ imprisonment, to be served consecutive to the sentence Martinez is
currently serving, and one year of supervised release. Martinez filed this appeal.
II. DISCUSSION
A. Jury Instructions
Defendant Martinez argues that the district court erred in giving the
government’s proposed jury instructions on the elements of the offense.2
Under 18 U.S.C. § 111(a), a person commits forcible assault if that person
forcibly assaults, resists, opposes, impedes, intimidates or interferes with a federal
2
We review the legal correctness of a jury instruction de novo. United States v. Prather,
205 F.3d 1265, 1270 (11th Cir. 2000). District courts have broad discretion in formulating jury
instructions, so long as the charge as a whole accurately reflects the law and the facts. Id. We
will not reverse a conviction on the basis of a jury charge unless “the issues of law were
presented inaccurately, or the charge improperly guided the jury in such a substantial way as to
violate due process.” Id. (quotation marks and citation omitted).
7
officer in the performance of his official duties. Section 111 provides for different
penalties depending on the severity of the offenses, as follows:
(a) In general -- Whoever –
(1) forcibly assaults, resists, opposes, impedes, intimidates, or
interferes with any person designated [as a federal officer]
while engaged in or on account of the performance of official
duties; . . .
...
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.
(b) Enhanced penalty. -- Whoever, in the commission of any acts
described in subsection (a), uses a deadly or dangerous weapon . . . or
inflicts bodily injury, shall be fined under this title or imprisoned not
more than ten years.
18 U.S.C. § 111(a)-(b) (2002).3 In sum, § 111(a) establishes these categories of
forcible assault, each with its own penalty: (1) “simple assault,” punishable by not
more than a year of imprisonment; (2) “all other cases” of forcible assault, which
are punishable by not more than three years’ imprisonment; and (3) “all other
cases” of forcible assault where the defendant uses a deadly or dangerous weapon
or inflicts bodily injury, which are punishable by not more than ten years’
3
On November 2, 2002, the maximum penalty for “all other cases” of assault was
increased to eight years’ imprisonment, and the maximum penalty for assaults involving the use
of a deadly or dangerous weapon was increased to twenty years’ imprisonment. Federal
Judiciary Protection Act of 2002, Pub. L. No. 107-273, § 11008(b), 116 Stat. 1758, 1818 (2002).
8
imprisonment.4
In the statutory language of § 111(a) Congress did not define “simple
assault” or the difference between a forcible assault that should be considered a
“simple assault” and an “all other cases” forcible assault. However, in a recent §
111(a) case, this Court discussed the difference. See United States v. Fallen, 256
F.3d 1082, 1088 (11th Cir. 2001). In Fallen, this Court first noted that simple
assault at common law “is defined as ‘a willful attempt to inflict injury upon the
person of another, or . . . a threat to inflict injury upon the person of another which,
when coupled with an apparent present ability, causes a reasonable apprehension of
immediate bodily harm.’”5 Id. (emphasis added) (alteration in original); see also
United States v. Renfro, 620 F.2d 497, 500 (5th Cir. 1980).6
4
Most circuits view § 111 as creating three categories of forcible assault. See, e.g.,
United States v. Hathaway, 318 F.3d 1001, 1008 (10th Cir. 2003); United States v. Campbell,
259 F.3d 293, 296 (4th Cir. 2001); United States v. McCulligan, 256 F.3d 97, 102 (3d Cir.
2001); United States v. Ramirez, 233 F.3d 318, 321 (5th Cir. 2000), overruled on other grounds
by United States v. Longoria, 298 F.3d 367, 372 & n.6 (5th Cir. 2000); United States v.
Chestaro, 197 F.3d 600, 606 (2d Cir. 1999). One circuit, however, notes that “the conduct
prescribed by § 111(b) does not form a third distinct category, but is a subcategory of the ‘all
other cases’ conduct.” United States v. Yates, 304 F.3d 818, 823 (8th Cir. 2002). The circuits
vary as to whether physical contact is required for the second category of forcible assault. See
infra note 7.
5
Other circuits have also looked to the common law definition to define “simple assault”
in § 111(a) cases. See, e.g., Yates, 304 F.3d at 821-22; McCulligan, 256 F.3d at 102; Ramirez,
233 F.3d at 321; Chestaro, 197 F.3d at 605.
6
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to October 1, 1981.
9
The Fallen Court also said that “all other cases” of forcible assault in §
111(a) “have to be something more, such as a willful attempt or threat to inflict
serious bodily injury, coupled with an apparent present ability, which causes the
intended victim a reasonable apprehension of immediate serious bodily harm or
death.” Fallen, 256 F.3d at 1088 (first emphasis added). Fallen involved verbal
threats to shoot two federal officers where there was no physical contact. Id. at
1087-88. The Fallen Court expressly rejected the argument that the second
category of forcible assault must always involve actual physical contact.7 Id.
Fallen, however, did not address the proper category of a § 111(a) forcible
assault when the assault conduct at issue involves physical contact.8 Nevertheless,
every circuit to address the question has held that an assault that involves physical
contact falls within the “all other cases” provision of § 111(a) and is not a “simple
assault” under § 111(a). See United States v. Hathaway, 318 F.3d 1001, 1008-09
(10th Cir. 2003) (involving a defendant who pushed a social security
7
Some circuits have concluded that the second category of forcible assault (i.e., the “all
other cases” of forcible assault) requires some touching or physical contact. See, e.g.,
McCulligan, 256 F.3d at 104 (requiring proof of actual contact to sustain a conviction for a §
111(a) offense beyond simple assault). However, the Eighth Circuit in Yates, 304 F.3d at 822,
like this Court in Fallen, has said that actual physical contact is not required in “all other cases”
of forcible assault. Rather, the Eighth Circuit concluded that “all other cases” of forcible assault
in § 111(a) includes all other assaults that are not within the common law definition of simple
assault. Yates, 304 F.3d at 823.
8
We need not address whether a threat or attempt to throw urine in someone’s mouth,
nose and eyes constitutes a threat of serious bodily injury because, here, Martinez actually threw
the urine, making physical contact with Parodi.
10
administration agent in the chest and grabbed his tie, thereby choking him); United
States v. Ramirez, 233 F.3d 318, 321-22 (5th Cir. 2000) (involving a defendant
who threw a cup of urine/feces at a correctional office, striking him in the chest
and lower body), overruled on other grounds by United States v. Longoria, 298
F.3d 367, 372 & n.6 (5th Cir. 2002) (en banc); United States v. Chestaro, 197 F.3d
600, 605-06 (2d Cir. 1999) (involving a defendant who wielded a boxcutter and
struggled with postal police officers); see also United States v. Yates, 304 F.3d
818, 822 (8th Cir. 2002) (involving a defendant who drove a car at United States
marshals, but did not make physical contact and limiting “simple assaults” under §
111(a) to assaults without physical contact).
Turning to this case, we first note that the indictment charged that Martinez
“knowingly and intentionally did forcibly assault, resist, oppose, impede,
intimidate, and interfere with” a federal correctional officer “by physically striking
[him] about the face and body with a liquid that was or appeared to be urine” in
violation of § 111(a)(1). In other words, Martinez’s charged offense involved
actual physical contact rather than mere threats or attempts to inflict bodily injury
(i.e., “simple assault”).9 Accordingly, we agree with our sister circuits and
conclude that Martinez’s offense, which involved actual physical contact, falls
9
Because Martinez’s offense involved physical contact, rather than threats of serious
bodily injury, his reliance on Fallen is misplaced.
11
within the “all other cases” provision of § 111(a) and not within the “simple
assault” provision. Furthermore, since minimal contact is sufficient to violate §
111(a), United States v. Hernandez, 921 F.2d 1569, 1577 (11th Cir. 1991), the
physical contact need not have resulted in actual bodily injury.
We also reject Martinez’s argument that the second category of forcible
assault always requires a threat to inflict serious bodily injury. While a threat to
inflict serious bodily injury without any actual physical contact is sufficient under
Fallen to establish an “all other cases” forcible assault, an assault with actual
physical contact is also sufficient to prove an “all other cases” forcible assault.
The pattern jury instruction that Martinez urged the district court to use
addresses an “all other cases” forcible assault in which a defendant makes threats
or attempts to inflict serious bodily injury but no actual physical contact occurs.10
That pattern jury instruction was not appropriate in Martinez’s particular case
because his offense involved actual physical contact rather than threats or attempts.
Thus, the district court properly rejected Martinez’s request to give that particular
pattern jury instruction and instead properly defined a forcible assault in his case as
“an assault which results in physical contact which does not involve a deadly
weapon or bodily harm.” The definition as instructed accurately reflected the
10
See supra note 1.
12
applicable law given the evidence presented in Martinez’s case.
Martinez also argues that the district court erred when it defined the phrase
“knowingly and willfully” as used in the indictment as “done voluntarily and
intentionally, and not because of mistake or accident.” Martinez’s contention that
this instruction modified the offense from a specific intent offense to a general
intent offense is without merit and we need not discuss it further. See United
States v. Ettinger, 344 F.3d 1149, 1154 (11th Cir. 2003) (recognizing that specific
intent is not an element of a § 111 offense).
B. Sufficiency of the Evidence
Martinez also argues that the government failed to prove beyond a
reasonable doubt that he intended to inflict serious bodily injury to Parodi.11 This
argument hinges on Martinez’s argument, which we have already rejected, that an
“all other cases” forcible assault requires an attempt or threat to inflict serious
bodily injury.12 As discussed supra, the district court correctly instructed the jury
11
We review the sufficiency of the evidence de novo, viewing the evidence in a light most
favorable to the government and making all reasonable inferences and credibility determinations
in favor of the government and the jury’s verdict. United States v. Garcia, 405 F.3d 1260, 1269
(11th Cir. 2005).
12
We likewise reject Martinez’s claim that the government was required to prove that the
liquid thrown at Parodi was actually urine. Nonetheless, we note that the government presented
evidence that the liquid smelled like urine to Parodi and Giraldo, that Giraldo observed Martinez
urinating in another bottle and saying “I got more for you” after spraying the liquid, and that
Martinez himself apologized to Giraldo for hitting him with urine.
13
on the term “forcible assault” under the evidence in this case. Specifically, the
district court made it clear that the government needed to prove beyond a
reasonable doubt that: (1) Martinez “forcibly assaulted” Parodi by committing an
assault that resulted in physical contact, but that did not involve bodily injury or a
deadly weapon; (2) that Parodi was a federal officer engaged in the performance of
official duties; and (3) that Martinez acted knowingly and willfully, meaning his
actions were voluntary and intentional and not the result of mistake or accident.
The government’s evidence was sufficient to establish Martinez’s guilt. The
evidence showed that Martinez sprayed a urine-like liquid through the slot in his
cell door; that the stream of liquid made physical contact with Parodi’s chest and
head, but did not result in serious bodily harm; that, at the time of the incident,
Parodi was a correctional officer conducting a linen exchange in the SHU where
Martinez was housed; and that Martinez intended the liquid to make contact with
Parodi and, indeed, had planned the offense ahead of time. From this evidence, a
reasonable jury could conclude that all the elements of a § 111(a) offense were
met.
C. Closing Argument
Martinez contends that the district court abused its discretion when it
prohibited him from arguing during closing about the government’s failure to
14
produce a videotape of the incident. Although evidence was presented at trial that
video cameras were present in the SHU, there was no evidence that the cameras
were connected to a recording device or that a videotape of the incident actually
existed. A district court does not abuse its discretion by prohibiting counsel from
making arguments that are unsupported by the record. United States v. Hall, 77
F.3d 398, 400 (11th Cir. 1996) (explaining that reversal is warranted “only if
counsel is prevented from making all legal arguments supported by the facts”).
D. Restitution Order
Finally, Martinez challenges the district court’s order requiring Martinez to
pay restitution to Parodi for his medical bills.13
The Mandatory Victims Restitution Act (“MVRA”) applies to a conviction
for an offense: (1) that is a crime of violence, which is a crime that has as an
element the use, attempted use or threatened use of physical force against the
person or property of another; and (2) in which an identifiable victim suffered a
physical injury or pecuniary loss. See 18 U.S.C. §§ 16, 3663A(c)(1). The MVRA
provides that the restitution order shall require the defendant to pay an amount
equal to the cost of necessary medical and related professional services and devices
13
We review a district court’s restitution order for an abuse of discretion, but the legality
of the order is reviewed de novo. United States v. Yeager, 331 F.3d 1216, 1227 (11th Cir.
2003).
15
relating to physical, psychiatric and psychological care. 18 U.S.C.
§ 3663A(b)(2)(A).
Martinez does not dispute that forcible assault is a crime of violence under
the MVRA. Rather, Martinez contends that restitution should not be awarded for
medical consultations and check-ups for uninjured victims.
The MVRA permits restitution for both physical injury and pecuniary loss.
Thus, even though Parodi was not seriously injured by Martinez’s assault, Parodi
had to expend $1,801.63 in medical tests to make that determination. Some of the
urine-like liquid Martinez sprayed on Parodi got in his mouth, nose and eyes, and
Parodi did not know Martinez’s medical history. Until Parodi had the medical tests
performed, he did not know whether he had contracted a communicable disease as
a result of Martinez’s actions. Therefore, Parodi at a minimum suffered a
pecuniary loss under the MVRA. Furthermore, because these medical tests were
necessary to rule out serious injury, the district court did not abuse its discretion in
ordering Martinez to pay an amount equal to their cost.
AFFIRMED.
16