United States v. Todd Stands Alone ( 2021 )


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  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 20-2018
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    TODD STANDS ALONE,
    Defendant-Appellant.
    ____________________
    Appeal from the United States District Court for the
    Western District of Wisconsin.
    No. 18-cr-00128-jdp — James D. Peterson, Chief Judge.
    ____________________
    ARGUED MAY 18, 2021 — DECIDED AUGUST 23, 2021
    ____________________
    Before EASTERBROOK, BRENNAN, and SCUDDER, Circuit
    Judges.
    BRENNAN, Circuit Judge. Todd Stands Alone, while impris-
    oned at a federal correctional facility in Wisconsin, injured a
    correctional officer. After a bench trial, the district court con-
    victed him for inflicting bodily injury to a federal officer, in
    violation of 
    18 U.S.C. § 111
    . Stands Alone now appeals his
    conviction and challenges the district court’s interpretation of
    2                                                   No. 20-2018
    § 111. For the reasons explained below, we affirm his convic-
    tion.
    I
    On March 1, 2018, Todd Stands Alone was imprisoned at
    a federal correctional facility in Oxford, Wisconsin. That even-
    ing Correctional Officer Shay Decker inspected Stands
    Alone’s cell, where she confiscated a broken pen, a playing
    card, and a razor blade. Three other officers later entered
    Stands Alone’s cell and removed two bags containing cloth-
    ing, paperwork, and books.
    Stands Alone was displeased. He paced back and forth in-
    side the unit, threw his clothes at the door, and shouted at the
    officers. To deescalate the situation, Decker ordered Stands
    Alone to move toward the front of the unit. Instead, he re-
    turned to his cell and continued to shout. Decker followed
    Stands Alone to the cell and warned that she would use pep-
    per spray if he continued to resist. Then, in quick succession,
    Stands Alone grabbed a fire extinguisher off the wall and
    lifted it up to his chest; Decker deployed her pepper spray;
    and Stands Alone discharged the fire extinguisher. Fire sup-
    pressant—along with pepper spray chemicals—blew towards
    Decker, who experienced visual impairment and “suffered
    physical pain from the chemical burns from pepper spray.”
    In September 2018, a grand jury indicted Stands Alone for
    violating 
    18 U.S.C. § 111
    (a)(1) and (b). Section 111(a) penalizes
    whoever “forcibly assaults, resists, opposes, impedes, intimi-
    dates, or interferes with any person designated in section
    1114,” which includes federal correctional officers. Subsection
    (b) enhances the penalty for those who “inflict[] bodily in-
    jury” on the victim in the commission of any act in subsection
    No. 20-2018                                                  3
    (a). The government’s indictment against Stands Alone speci-
    fied that he “knowingly and forcibly resisted, intimidated,
    and interfered with” Decker “while she was engaged in her
    official duties, and in doing so, inflicted bodily injury to
    [her].”
    Stands Alone waived his right to a jury trial. One day be-
    fore the bench trial began, Stands Alone filed a “theory of de-
    fense” brief, challenging the indictment as “defective.” Rely-
    ing on the Tenth Circuit’s decision in United States v. Wolf-
    name, 
    835 F.3d 1214
    , 1218 (10th Cir. 2016), Stands Alone con-
    tended that assault is an essential element of every § 111 of-
    fense. He emphasized that the indictment did not allege “as-
    sault” and instead “merely provide[d] that he resisted, intim-
    idated and interfered with” Decker. “Much hinge[d] on that
    omission,” Stands Alone continued, because it meant “the
    grand jury did not find that an assault happened.” Later that
    day, Stands Alone followed up with a “supplementary theory
    of the defense” brief. In it, Stands Alone attempted to clarify
    that “the defense [was] not claiming that the indictment does
    not state an offense, such that it has to be dismissed.” He ad-
    vanced a narrow position: assault is an essential element of a
    § 111 violation when charged as a misdemeanor or felony,
    and because the indictment did not charge him for assault, he
    could be convicted only of an infraction under 
    18 U.S.C. § 3559
    (a)(9).
    At and after trial, Stands Alone relied on the argument he
    raised in his two theory of defense briefs and highlighted in
    his post-trial reply brief: “the government is limited to what
    the grand jury charged” in the indictment. The grand jury did
    not charge him with “assault,” Stands Alone asserted, so he
    could be punished with an infraction and not imprisonment.
    4                                                   No. 20-2018
    The district court rejected Stands Alone’s claim on the
    merits. It first noted that Stands Alone’s charge implicated
    § 111(b) because the incident here involved bodily injury to
    Decker. The government could secure a § 111(b) conviction,
    the district court reasoned, by demonstrating that Stands
    Alone forcibly committed at least one of the six acts in
    § 111(a)(1) against a federal officer and inflicted bodily injury
    in doing so. The district court said Stands Alone’s interpreta-
    tion—that assault is an element of any conviction under
    § 111—“defies common sense.” Pointing to the six distinct
    verbs listed in § 111(a)(1), the district court concluded that
    Stands Alone’s interpretation “runs contrary to the textual
    language, rendering five of the six verbs in subsection (a)(1)
    superfluous.”
    Stands Alone’s appeal asks us to resolve a single question:
    Did the district court err in concluding that assault was not an
    essential element of his § 111 conviction?
    II
    A
    We start with the government’s contention that Stands
    Alone’s appeal should be dismissed because he waived or for-
    feited his challenge to his conviction.
    In his theory of defense briefs—submitted one day before
    the trial commenced—Stands Alone argued that assault is an
    essential element of any § 111 offense. An objection to “a de-
    fect in the indictment” must be “raised by pretrial motion.”
    FED. R. CRIM. P. 12(b)(3). Otherwise, the motion will be
    deemed “untimely,” although the “court may consider the
    defense, objection, or request if the party shows good cause.”
    Id. 12(c)(3). The problem with the timing of Stands Alone’s
    No. 20-2018                                                    5
    argument was not that he intentionally or inadvertently failed
    to timely assert a right. Rather, he was silent when Federal
    Rule of Criminal Procedure 12 required that he file such a mo-
    tion.
    However Stands Alone characterizes his claim, it remains
    a challenge to the indictment itself, so his request was un-
    timely. Stands Alone’s initial theory of defense brief chal-
    lenged the indictment as defective, which “not only could
    have been presented by pretrial motion but also had to be so
    presented” under Rule 12(b)(3)(B). United States v. Wheeler,
    
    857 F.3d 742
    , 744 (7th Cir. 2017). But the district court may
    exercise discretion to relieve parties of forfeiture. See FED. R.
    CRIM. P. 12(c)(3) (good cause exception); United States v. Kirk-
    land, 
    567 F.3d 316
    , 322 (7th Cir. 2009) (“If a defendant makes a
    motion or raises an argument in an untimely manner, it is
    within the discretion of the district court to refuse to address
    it.”). Here, the district court implicitly found good cause and
    rejected Stands Alone’s interpretation of § 111. And on ap-
    peal, the government has not argued that this implied finding
    was an abuse of discretion, nor do we find it so.
    Because the district court reached the question on the mer-
    its and both parties have fully briefed the statutory interpre-
    tation issue, we decline to accept the government’s invitation
    to dismiss Stands Alone’s appeal.
    B
    Now to the merits. We review issues of statutory interpre-
    tation de novo. United States v. Hudson, 
    967 F.3d 605
    , 609 (7th
    Cir. 2020).
    6                                                    No. 20-2018
    Section 111 protects federal officers and federal functions.
    See United States v. Feola, 
    420 U.S. 671
    , 679 (1975). The statute,
    in relevant part, states:
    (a) In General.—Whoever—(1) forcibly assaults, re-
    sists, opposes, impedes, intimidates, or interferes
    with any person designated in section 1114 of this
    title while engaged in or on account of the perfor-
    mance of official duties …
    shall, where the acts in violation of this section consti-
    tute only simple assault, be fined under this title or im-
    prisoned 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) … inflicts
    bodily injury, shall be fined under this title or im-
    prisoned not more than 20 years, or both.
    
    18 U.S.C. § 111
    . Those designated under 
    18 U.S.C. § 1114
     in-
    clude federal correctional officers.
    A defendant violates § 111(a)(1) by forcibly assaulting, re-
    sisting, opposing, impeding, intimidating, or interfering with
    a federal officer—here, Decker. Subsection (a), through its
    hanging paragraph, prescribes a graded penalty structure.
    For acts constituting “only simple assault,” the defendant
    commits a misdemeanor offense and can receive a maximum
    penalty of one-year imprisonment. But if “such acts involve
    physical contact with the victim of that assault or the intent to
    commit another felony,” the defendant commits a felony
    No. 20-2018                                                    7
    offense and can receive a penalty of up to eight years’ impris-
    onment. Section 111(b) enhances the penalty—up to 20 years’
    imprisonment—if the defendant “inflicts bodily injury” in
    committing “any acts” enumerated in subsection (a). In other
    words, a defendant violates § 111(b) by causing bodily injury
    to a federal officer while committing one or more of the fol-
    lowing acts: assault, resist, oppose, impede, intimidate, and
    interfere.
    Stands Alone argues that assault must be an essential ele-
    ment of all offenses under § 111. Even a felony offense under
    § 111(b), he contends, demands a showing of assault. In sup-
    port, Stands Alone relies again on Wolfname, 835 F.3d at 1218,
    in which the Tenth Circuit held that assault is “an essential
    element of every § 111(a)(1) offense.” But there, the Tenth Cir-
    cuit was “bound by” its own precedent, which “divided
    § 111(a) into two offenses: a misdemeanor and a felony.” Id.
    at 1218, 1220 (citing United States v. Hathaway, 
    318 F.3d 1001
    ,
    1008–09 (10th Cir. 2003)). Reasoning that a § 111(a)(1) convic-
    tion for any of the enumerated six acts “must fall into one of
    these two categories” based on the language of the hanging
    paragraph, the Tenth Circuit determined that “a conviction
    for any of these acts necessarily involves—at a minimum—
    simple assault.” Id. at 1218. From this, Stands Alone urges this
    court to interpret the statute to include assault as an essential
    element of every offense under § 111, even offenses under
    subsection (b).
    We disagree with this reading. Start with § 111(a)(1). That
    provision lists six verbs separated by the disjunctive “or” and
    adjective “forcibly” modifying each of those acts. A proper
    reading of the text militates against defining resist, oppose,
    impede, intimidate, and interfere merely as synonyms of
    8                                                     No. 20-2018
    “assault.” That is because requiring assault as an essential el-
    ement of every § 111 offense would render the remaining five
    verbs superfluous. But that cannot be. Our view is supported
    across other circuits. See, e.g., United States v. Briley, 
    770 F.3d 267
    , 274 (4th Cir. 2014) (“We must … ascribe meaning to the
    five remaining verbs.”); United States v. Williams, 
    602 F.3d 313
    ,
    318 (5th Cir. 2010) (adopting the rule that “a misdemeanor
    conviction under § 111(a)(1) does not require underlying as-
    saultive conduct”); United States v. Gagnon, 
    553 F.3d 1021
    , 1027
    (6th Cir. 2009) (interpreting the predecessor version of § 111
    that “simple assault” is “a term of art that includes the forcible
    performance of any of the six proscribed actions in § 111(a)”).
    Cf. United States v. McIntosh, 
    753 F.3d 388
    , 393 (2d Cir. 2014)
    (per curiam) (“In drafting Section 111, Congress therefore cre-
    ated the single crime of harming or threatening a federal offi-
    cial, and specified six ways by which the crime could be com-
    mitted.” (internal quotation marks omitted)).
    Courts must presume that “each word Congress uses is
    there for a reason,” Advocate Health Care Network v. Stapleton,
    
    137 S. Ct. 1652
    , 1659 (2017), and “[i]f possible, every word and
    every provision is to be given effect,” ANTONIN SCALIA &
    BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF
    LEGAL TEXTS 174 (2012) (discussing the surplusage canon). Cf.
    Matter of Sinclair, 
    870 F.2d 1340
    , 1344 (7th Cir. 1989) (“To treat
    the text as conclusive evidence of law is to treat it as law—
    which under the constitutional structure it is.”). The most nat-
    ural way to read § 111 is this: subsection (a)(1) contains six
    distinct verbs, and subsection (b) enhances the penalty when
    a defendant inflicts bodily injury while committing one or
    more of those six acts. So assault is not an essential element of
    every § 111 offense.
    No. 20-2018                                                    9
    This court’s precedent does not point in a different direc-
    tion. Stands Alone asserts that a “deeper look” at United States
    v. Vallery, 
    437 F.3d 626
     (7th Cir. 2006), supports his reading of
    § 111. In Vallery, this court considered whether § 111’s misde-
    meanor provision applied just to the verb “assaults” or
    whether it extended to the remaining five verbs. Id. at 633. The
    defendant argued that because the indictment did not include
    the use of physical force, he could be convicted only of a sim-
    ple assault (a misdemeanor offense) with a maximum sen-
    tence of one year. Id. at 629. Reasoning that “the simple assault
    provision applies to the entirety of § 111(a)” and noting that
    the indictment “did not allege physical contact or any aggra-
    vating facts,” this court concluded that the defendant could
    be convicted only of a misdemeanor. Id. at 632–33.
    This discussion in Vallery, however, has limited applicabil-
    ity here. That case addressed a slightly different question:
    “whether [defendant’s] indictment, which did not allege
    physical contact, charged him under § 111 with a felony or a
    misdemeanor.” Id. at 629. Vallery neither involved the ques-
    tion whether assault is an essential element of every § 111 of-
    fense nor implicated an interpretation of subsection (b), as
    here. Instead, that case focused on the scope of the misde-
    meanor simple assault provision of subsection (a). So Vallery
    does not answer the question in this case.
    The Fourth Circuit’s decision in Briley is instructive. There,
    a defendant argued that assault is a required element of both
    a misdemeanor offense and a felony offense under § 111(a).
    770 F.3d at 273. In addition to recognizing that the defendant’s
    reading “renders a slew of verbs § 111(a) largely surplusage,”
    the Fourth Circuit emphasized that such interpretation “pro-
    duces an absurd result.” Id. at 273–74. Construing assault as a
    10                                                    No. 20-2018
    required element of § 111(a) offenses, that court emphasized,
    would mean that a “person could use force to resist federal
    officials, to oppose them, to impede them, to intimidate them,
    and to interfere with them” but still “escape the reach of
    § 111” so long as his conduct does not constitute an assault.
    Id. at 274.
    We agree with this point. True, the absurdity doctrine has
    not been universally favored. Compare City of Columbus v. Ours
    Garage & Wrecker Serv., Inc., 
    536 U.S. 424
    , 449 n.4 (2002) (Scalia,
    J., dissenting) (“A possibility so startling (and unlikely to oc-
    cur) is well enough precluded by the rule that a statute should
    not be interpreted to produce absurd results.”), with John F.
    Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387,
    2394–2408, 2461–63 (2003) (critiquing the absurdity doctrine).
    And this circuit has confined the doctrine to linguistic, as op-
    posed to substantive, absurdity. See, e.g., Soppet v. Enhanced
    Recovery Co., 
    679 F.3d 637
    , 642 (7th Cir. 2012) (explaining that
    the absurdity doctrine “does not mean” that a court can make
    “substantive changes designed to make the law ‘better’”);
    United States v. Logan, 
    453 F.3d 804
    , 806 (7th Cir. 2006) (noting
    that the absurdity doctrine “is limited to solving problems in
    exposition, as opposed to the harshness that a well-written
    but poorly conceived statute may produce”), aff’d, 
    552 U.S. 23
    (2007). Still, it provides a useful illustration here. Stands
    Alone’s proposed interpretation that assault is an essential el-
    ement of any § 111 offense would lead to what Briley de-
    scribed as an absurd outcome—a path we decline to tread.
    III
    For these reasons, we AFFIRM Stands Alone’s conviction.