United States v. James Wilkins, Jr. ( 2022 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-2404
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
James Anthony Wilkins, Jr.
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
____________
Submitted: December 17, 2021
Filed: February 9, 2022
____________
Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.
____________
LOKEN, Circuit Judge.
After James Anthony Wilkins, Jr. pleaded guilty to a felon in possession of a
firearm charge, a jury convicted him of two other charges, forcibly assaulting,
resisting, or impeding law enforcement with a dangerous weapon in violation of 18
U.S.C. §§ 111(a)(1) and (b), and brandishing a firearm in furtherance of this § 111
offense in violation of § 924(c)(1)(A)(ii). Wilkins appeals, arguing insufficient
evidence to convict beyond a reasonable doubt, and that the district court1 improperly
instructed the jury on the elements of the § 111 offense. We affirm.
I. Background
On February 28, 2015, United States Marshals Clark Meadows and Michael
Miller and Cape Girardeau Police Sergeant Joe Hann proceeded to a Cape Girardeau,
Missouri motel to arrest Wilkins, who was wanted by Mississippi officials in
connection with a nightclub shooting. The motel clerk referred the officers to Room
210, where the occupant recognized a photo of Wilkins, referred them to Room 206,
and said Wilkins had a gun. During the two-day trial, the government called nine
witnesses, including the three officers who knocked on the door of Room 206, and
Kacey Romans, who answered their knock and opened the door. Their testimony was
corroborated by a cell phone video of the encounter.
When the officers knocked at Room 206, Wilkins, who had seen officers in the
motel parking lot, told Romans to answer the door. He went into the bathroom to
dispose of drug contraband and hide his firearm. Romans initially told the officers
she did not know if Wilkins was there. Through the open door, the officers saw
Wilkins “poke his head out of the bathroom” and asked Romans to leave the room for
her safety. As Romans left, she said Wilkins might have a gun. The officers then
issued repeated, loud commands that the person in the bathroom drop his firearm and
come out with his hands up. Wilkins remained in the bathroom for two or three
minutes, initially to complete flushing his drug contraband. He told the officers he
had a gun, briefly displayed it, and said “Don’t shoot me.” The officers said, “We’re
not going to shoot you.”
1
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri
-2-
Marshal Meadows testified that while Wilkins was hiding in the bathroom,
Meadows could see him holding the gun so it could easily be fired. When Wilkins
finally came to the bathroom doorway, Meadows and Sgt. Hann testified they saw
him turn and raise the gun. Interpreting this as an “immediate” and “deadly” threat,
both fired at Wilkins, striking him in the chest. Meadows testified that he shot only
after Wilkins “took a deliberate step out of the [bath]room facing . . . straight towards
us and was coming up with the gun . . . pointing towards us.” Hann confirmed that
Wilkins in leaving the bathroom raised his gun “from a low waist position . . . toward
his upper torso, which [Hann] interpreted as a firing platform.” “There is nothing
[Wilkins] did that I could interpret as surrender.” Marshal Miller, whose view was
limited by his ballistic shield, testified that Wilkins ignored the officers’ repeated
commands to surrender and drop his gun. Wilkins, testifying in his own defense,
admitted to hiding in the bathroom with a gun and refusing to follow officers’
commands. He claimed that, in trying to surrender, he put the gun on the floor and
was shot as he rose up. Wilkins received medical care for his serious injury and was
taken into custody.
At the close of the evidence, the district court denied Wilkins’s timely motion
for judgment of acquittal. Consistent with Eighth Circuit Model Criminal Jury
Instruction 6.18.111, the court instructed the jury without objection that the
government must prove that Wilkins forcibly assaulted, resisted, opposed, impeded,
intimidated or interfered with any of the officers, and that the conduct was done
“voluntarily and intentionally.” The jury convicted Wilkins of both charges.
II. Sufficiency of the Evidence
On appeal, Wilkins argues the district court erred in denying his acquittal
motion because the evidence at trial addressed only the officers’ beliefs about his
intentions; therefore, the government failed to prove that he voluntarily and
intentionally used his gun to forcibly assault, resist, oppose, impede, intimidate, or
-3-
interfere with law enforcement, as 18 U.S.C. § 111(b) requires. We review whether
the evidence was sufficient under a strict standard of review. “[W]e will affirm if,
after viewing the evidence in the light most favorable to the verdict, a reasonable jury
could have found the defendant guilty beyond a reasonable doubt.” United States v.
Henderson, 11 F.4th 713, 715 (8th Cir. 2021).
Like its 1934 predecessor, 18 U.S.C. § 111 “effectuate[s] the congressional
purpose of according maximum protection to federal officers by making prosecution
for assaults upon them cognizable in the federal courts.” United States v. Feola, 420
U.S. 671, 684 (1974). As relevant here, the statute provides:
(a) In general. -- Whoever --
(1) forcibly assaults, resists, opposes, impedes, intimidates, or
interferes with any person designated in section 1114 of this title
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 . . .
(b) Enhanced penalty. -- Whoever, in the commission of any acts
described in subsection (a), uses a deadly or dangerous weapon
(including a weapon intended to cause death or danger but that fails to
do so by reason of a defective component) or inflicts bodily injury, shall
be fined under this title or imprisoned not more than 20 years, or both.
The district court properly instructed the jury that physical contact is not
necessary to satisfy the force element of § 111. All that is required is such a “threat
or display of physical aggression toward the officer as to inspire fear of pain, bodily
harm, or death.” United States v. Schrader, 10 F.3d 1345, 1348 (8th Cir. 1993),
quoting United States v. Walker, 835 F.2d 983, 987 (2d Cir. 1987). “The proper
-4-
standard for determining whether the requisite degree of force was displayed,
therefore, is an objective one, i.e., whether the defendant’s behavior would reasonably
have inspired fear in a reasonable person.” Walker, 835 F.2d at 987.
“[T]o incur criminal liability under § 111 an actor must entertain . . . the
criminal intent to do the acts therein specified.” Feola, 420 U.S. at 686.
“Accordingly, intent to use the weapon is a necessary element [of a § 111(b) offense],
and a defendant who does so purely by accident does not come within the scope of
§ 111(b).” United States v. Arrington, 309 F.3d 40, 45 (D.C. Cir. 2002). Wilkins
argues the evidence was insufficient to prove he acted voluntarily and intentionally
because “[t]he evidence presented was that of the mental state of the other players.”
The government was not required to present direct evidence of Wilkins’s
subjective intent. Rather, the officers’ trial testimony describing Wilkins’s actions
amply demonstrates the required intent. Instead of immediately surrendering, Wilkins
purposely hid in the bathroom with a loaded weapon and ignored officers’ commands
for over two minutes. He told them he had a weapon and briefly displayed it in what
at least one officer thought was a threatening manner. This placed the officers in an
exposed position, attempting to detain an armed, concealed suspect who could fire
on them without warning. Marshal Meadows agreed the standoff was “about as
dangerous a situation as [he had] been into.” Wilkins admitted the relevant facts but
testified he never intended to threaten or harm the officers, told them he would not
shoot, and was trying to surrender. As in United States v. Wallace, the jury faced
competing accounts of the events, and “the verdict reflects that the jury credited [the
officers’] account . . . [which] provides sufficient proof that [Wilkins] acted
voluntarily and intentionally.” 852 F.3d 778, 783 (8th Cir. 2017). Accordingly, like
the district court, we conclude the evidence was more than sufficient to support the
jury’s verdict. See Henderson, 11 F.4th at 716 (jury credibility findings “are virtually
unreviewable on appeal”).
-5-
III. The Jury Instruction Issue
Jury Instruction Number 7 set forth the elements of Count 1, the § 111 charge.
As relevant here, it informed the jury that the first element of § 111 requires proof
that “the defendant forcibly assaulted, resisted, opposed, impeded, intimidated or
interfered with [law enforcement] with a dangerous weapon.” At the instructions
conference, Wilkins objected that this instruction risked a non-unanimous verdict
because the verbs were listed in the disjunctive so “one juror will think that it’s
resisting but nothing else and another juror might think there was intimidating but
nothing else.” The district court overruled this objection.
Wilkins abandons this contention on appeal. Instead, he contends that the
instruction failed to inform the jury that “forcibly” is a required element for each of
the six alternative acts that violate § 111. Without explicit clarification, Wilkins
argues, the jury may have believed that “forcibly” only applied to assault, and thus
based its conviction on a finding that he merely possessed the gun and “interfered”
with law enforcement. Wilkins first raised this issue in his post-conviction motion
for new trial, which would normally preserve it, if at all, only for plain error review
on appeal. See United States v. Spencer, 998 F.3d 813, 818 (8th Cir. 2021), cert.
denied, __ S. Ct. __ (2022); Fed. R. Crim. P. 30(d). But we need not decide that
question because we conclude the claim of instruction error is without merit.
We review challenges to jury instructions under a deferential abuse of
discretion standard and “will not find error when the jury instruction fairly and
adequately submitted the issue to the jury.” United States v. Stanley, 891 F.3d 735,
739 (8th Cir. 2018) (cleaned up). The district court adapted Instruction 7 from the
Eighth Circuit Model Criminal Jury Instruction 6.18.111. It directly tracked the
statutory language in §§ 111(a) and (b). In Schrader, we confirmed that “the adverb
‘forcibly’ was intended to modify each of the verbs which succeeded it.” 10 F.3d at
1349 (quotation omitted). We noted that an instruction similar to Instruction 7 in this
-6-
case “was ambiguous . . . standing alone.” Id. But we reversed because, unlike in
this case, the district court incorrectly ruled during the instruction conference that
“forcibly” modifies only “assaults,” and the government so advised the jury during
its closing argument. Id. Here, by contrast, this issue was not discussed during the
instructions conference. After the district court published Instruction 7, both the
government and defense counsel’s closing arguments, as well as the verdict form,
reinforced the plain meaning of Instruction 7 -- the force element applies to each of
the underlying acts, not just to an assault.2
The Series-Qualifier Canon of statutory construction reinforces the plain
meaning of Instruction 7: “When there is a straightforward, parallel construction that
involves all nouns or verbs in a series, a prepositive . . . modifier normally applies to
the entire series.” Scalia & Garner, Reading Law: The Interpretation of Legal Texts
147 (2012). In rejecting a similar challenge to a § 111 instruction, the Eleventh
Circuit observed, “[a]s a matter of grade-school grammar, the adverb ‘forcibly’
necessarily modifies each of the listed verbs that follows it.” United States v. Gumbs,
964 F.3d 1340, 1347 (11th Cir. 2020), cert. denied, 141 S. Ct. 1282 (2021).
However, this issue has generated some concern. In Arrington, 309 F.3d at 47, for
example, the D.C. Circuit advised that, when the “forcibly” issue is timely raised, “to
avoid uncertainty, it is . . . the better practice for the trial court to advise the jury . . .
you must find beyond a reasonable doubt that the defendant acted forcibly.”
Here, the issue was not timely raised, so we need not consider whether a
district court might abuse its discretion if it chose not to follow the D.C. Circuit’s
advice in a particular case. Rather, we must view Instruction 7 in the “context of the
overall charge to the jury” and “assess whether there is a reasonable likelihood that
the jury instructions, taken as a whole, misled the jury to convict the defendant based
2
Defense counsel argued the jury should find reasonable doubt whether Wilkins
was “intentionally and forcibly trying to resist or interfere with these officers.”
-7-
on an incorrect standard.” United States v. Haynie, 8 F.4th 801, 805 (8th Cir. 2021)
(quotation omitted). Applying this standard, we conclude Instruction 7 was not an
abuse of the district court’s discretion to fashion appropriate instructions, much less
plain error.
The judgment of the district court is affirmed.
______________________________
-8-