United States v. Gass ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4209
ALBERT GASS, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-95-130-A)
Submitted: July 30, 1996
Decided: August 16, 1996
Before MURNAGHAN, HAMILTON, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Joseph J. McCarthy, DELANEY, MCCARTHY, COLTON &
BOTZIN, P.C., Alexandria, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Bruce C. Swartz, Special Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Albert Gass, Jr., appeals his conviction for assault on a federal offi-
cer, in violation of 18 U.S.C.A. § 111(a)(1) (West Supp. 1996). Gass
challenges the sufficiency of the evidence to support the conviction,
and we affirm.
Reviewing the evidence in the light most favorable to the Govern-
ment, as we must,* the following occurred. On July 12, 1995, Gass,
a federal inmate, was being held in the United States Marshal's cell
block at the federal courthouse in Alexandria, Virginia. He and other
inmates were to be witnesses in an ongoing trial. Because there was
an order to keep him separate from the other inmates, Gass was in an
interview room with no bathroom. As Marshal Jenkins conducted
Gass to a bathroom down the hall, he passed the cell holding the other
inmates. Gass became agitated and shouted at one of the inmates.
Concerned because Gass was very disturbed and because he was
afraid the other inmates would become upset, Jenkins returned Gass
to the interview room without taking him to the bathroom.
Marshal Jenkins and Marshal Clarkson both testified that Gass
remained agitated and irate for the next few hours. Jenkins told Gass
that if he calmed down he could be taken to the bathroom. Gass began
striking the door to the interview room and screaming. Jenkins feared
that Gass would injure himself or damage the door or the screen
within the room. Jenkins warned Gass that if he did not stop, Jenkins
would spray him with pepper spray. Gass, using profanity, replied
that he would beat up the first person that came in the room. He con-
tinued to bang on the door.
After another warning, Marshals Jenkins and Clarkson opened the
door. Gass immediately charged through the door with his head down
and fists flailing, straight toward Marshal Jenkins. Jenkins sprayed the
pepper spray, but was unsure whether Gass was affected as the latter
struggled with Marshal Clarkson. Jenkins sprayed again; the marshals
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*Glasser v. United States, 315 U.S. 60, 80 (1942).
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subdued Gass and placed him in a cell, where he was given a tub of
water and an electric fan to dissipate the effects of the spray.
Under 18 U.S.C. § 111(a)(1), one who "forcibly assaults, resists,
opposes, impedes, intimidates, or interferes with" certain federal offi-
cers, including United States Marshals, is subject to conviction. In
enacting § 111, Congress sought to give maximum protection to fed-
eral officers. United States v. Feola, 420 U.S. 671, 684 (1975). No
particular level of force is required to prove the offense--only a will-
ful attempt to inflict injury or a threat to inflict injury coupled with
a present ability to do so. United States v. Sommerstedt, 752 F.2d
1494, 1496 (9th Cir.), cert. denied, 474 U.S. 851 (1985). Behavior
like Gass's has been held sufficient to sustain a conviction under
§ 111. United States v. Shedlock, 62 F.3d 214, 220 (8th Cir. 1995)
(pounding on a car door and advancing aggressively toward an officer
satisfies the force requirement of the statute).
We conclude that the evidence at trial was sufficient to support
Gass's conviction under § 111(a)(1). Therefore, we affirm his convic-
tion. We dispense with oral argument because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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