Plain Error Found in Failure to Instruct Jury That Assault is an Element of Every Conviction Under 18 U.S.C. § 111(a)(1)

By: Mackenzie Shields

In United States v. Wolfname, 2016 WL 4492465 (10th Cir. 2016), the Tenth Circuit held that assault is an element of every conviction under 18 U.S.C. § 11(a)(1). While responding to an early-morning 911 call, Officer Blaine Parnell—a police officer with the United States Bureau of Indian Affairs—attempted to arrest Wolfname on outstanding warrants. Wolfname fled. As a result of the flight and ensuing scuffle, Wolfname was indicted for “knowingly and forcibly assault[ing], resist[ing], and interfer[ing] with” Officer Parnell while he “was engaged in the performance of his official duties, which resulted in bodily injury to Parnell.” The jury found Wolfname guilty of resisting and interfering with Parnell in violation of § 111(a)(1), but wrote “No,” next to the assault option on the verdict form.

On appeal, Wolfname argued that the district court failed to instruct the jury on assault as an element of resisting and interfering with an officer under § 111(a)(1). The Tenth Circuit had previously addressed the issue in United States v. Hathaway, 318 F.3d 1001 (10th Cir. 2003). In Hathaway, it held that § 111(a) proscribes two separate offenses—a misdemeanor offense and a felony offense. The Tenth Circuit then held that both offenses require that the government prove assault when it alleges a defendant violated § 111(a)(1). Since a § 111(a)(1) conviction for resisting, opposing, impeding, intimidating, or interfering must fall into one of the offense categories, a conviction for any of these acts necessarily involves—at a minimum—simple assault. Therefore, assault is an element of any § 111(a)(1) conviction under Hathaway.

The district court’s failure to instruct the jury on the essential element of assault constituted plain error and the plain error affected Wolfname’s substantial rights and the fairness, integrity, or public reputation of his trial, therefore his conviction was reversed and remanded for further proceedings.