United States v. David Gerald , 590 F. App'x 224 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4902
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID MICHAEL GERALD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:13-cr-00192-LO-1)
Submitted: October 29, 2014 Decided: January 13, 2015
Before GREGORY and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lance A. Wade, Evan M. Mendelson, WILLIAMS & CONNOLLY LLP,
Washington, D.C., for Appellant. Dana J. Boente, Acting United
States Attorney, Matt J. Gardner, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Michael Gerald appeals from his conviction of
assaulting, resisting, opposing, impeding, intimidating, or
interfering with a federal officer, in violation of 18 U.S.C.
§ 111(a) (2012). He argues that the district court erred in
failing to instruct the jury that it could convict him under the
“physical contact” prong of § 111(a) only if it found that he
had assaulted the officer (“the assault issue”). Gerald further
contends that the district court abused its discretion by
choosing to answer a jury question about the lawfulness of the
officer’s actions and by the content of that response. Finding
no error, we affirm.
As to the assault issue, ordinarily we review jury
instruction de novo. United States v. Powell, 680 F.3d 350, 355
(4th Cir. 2012). If, however, the defendant failed to object to
the instruction on the basis asserted on appeal, our review is
for plain error. United States v. Jeffers, 570 F.3d 557, 569
(4th Cir. 2009). Although the parties disagree as to whether
Gerald preserved the assault issue, we need not resolve this
dispute because the district court’s instruction was proper even
under de novo review.
We recently held that it is “proper for the district
court to instruct the jury that [the defendant] could have
committed any of the threshold acts charged—not ‘assault’ only—
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to be found guilty of a § 111 offense, so long as the other
elements of the offense were satisfied.” United States v.
Briley, ___ F.3d ___, 2014 WL 5355522, at *6 (4th Cir. Oct. 22,
2014). The district court here instructed the jury that it
could convict Gerald if it found that he forcibly assaulted or
resisted or opposed or impeded or interfered with the officer.
It further instructed that the Government need prove that Gerald
forcibly committed only one of the several alternative acts
charged. Because these instructions comport with our holding in
Briley, we find no error.
Gerald also challenges the district court’s
supplemental instruction. During deliberations, the jury asked
the district court to clarify whether a push from an officer was
lawful. The district court, although observing that the
question was vague and unclear, concluded that it could respond
generally on the law, and it informed the jury that the right to
detain or arrest carries with it the right to use the amount of
force that a reasonable officer would objectively think
necessary to effect the arrest. Gerald argues that the district
court should not have answered the question at all because it
was vague, and further that any response should have included
factors drawn from a model jury instruction.
We review the propriety of this instruction for abuse
of discretion. Jeffers, 570 F.3d at 566. In providing a
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supplemental instruction in response to a jury question, “the
district court’s duty is simply to respond to the jury’s source
of confusion fairly and accurately without creating prejudice.
The particular words chosen, like the decision whether to issue
any clarification at all, are left to the sound discretion of
the district court.” United States v. Smith, 62 F.3d 641, 646
(4th Cir. 1995) (citation omitted).
We perceive no abuse of discretion in the district
court’s decision to respond to the jury’s inquiry or in the
content of that response. The district court acknowledged that
the facts underpinning the question were unclear, but concluded
that the general law applicable to such scenarios was not. It
drew upon language from the Supreme Court in drafting its
supplemental instruction. See Graham v. Connor, 490 U.S. 386(1989). This claim is therefore unavailing.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED
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