United States v. Jay Briley , 770 F.3d 267 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4831
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAY BONANZA BRILEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:12-cr-00482-LO-1)
Argued: September 19, 2014 Decided: October 22, 2014
Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Duncan and Judge Keenan joined.
ARGUED: Cara Viglucci Lopez, SIDLEY AUSTIN LLP, Washington,
D.C., for Appellant. David Sang Hak Lee, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia; Gordon D. Todd, Sean R.
Dickson, SIDLEY AUSTIN LLP, Washington, D.C., for Appellant.
Dana J. Boente, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
WILKINSON, Circuit Judge:
Appellant Jay Bonanza Briley was convicted after a two-day
jury trial on four counts arising from intimate sexual
activities in a national park and an ensuing physical
altercation with United States Park Police officers. Briley now
challenges the interpretation of the statute under which he was
convicted, 18 U.S.C. § 111. He also contests the admission of
evidence of a subsequent act under Federal Rule of Evidence
404(b). Finding no reversible error, we affirm.
I.
In reviewing Briley’s conviction, we consider the evidence
in the light most favorable to the prevailing party, here the
government. Evans v. United States, 504 U.S. 255, 257 (1992);
see United States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en
banc).
A.
On the afternoon of January 12, 2012, Park Police officers
were patrolling the Washington Sailing Marina in Alexandria,
Virginia. The Marina serves as a recreational area at
Daingerfield Island, a national park situated along the George
Washington Memorial Parkway and the Potomac River. The Marina,
which has several parking lots, is also a reputed meeting place
2
for sexual encounters. Officers also patrol the area to prevent
criminal activities such as illicit drug use, alcohol offenses,
and disorderly conduct.
Two plain-clothes Park Police officers on patrol in an
unmarked vehicle, William Brancato and Robert Usher, observed a
man parking his car next to Briley’s SUV. After the man entered
Briley’s vehicle, the two men reclined the front seats, and
Briley placed a sunscreen across the windshield. Seeing other
people approaching, Briley drove to another Marina parking lot.
Inside the newly parked SUV, Briley was naked, and his
companion’s pants were down. From afar, the two officers saw
Briley and the other man preparing to engage in sexual
relations.
Brancato and Usher contacted two other Park Police officers
on patrol nearby, Corey Mace and Thomas Twiname. Mace and
Twiname, who were wearing tactical attire with police markings,
drove to the Marina and approached Briley’s SUV on foot. Briley
exclaimed, “It’s the cops.” J.A. 151. In response to a directive
from Mace, Briley’s companion opened the front passenger door,
exited the SUV, and lay on the ground. Briley remained in the
vehicle.
Standing on the driver’s side of the vehicle, Twiname
banged on the window and yelled, “Police, open the door.”
J.A. 115. When Briley objected that he was naked, Twiname
3
threatened to smash the window. Briley then opened the door, but
he refused to follow Twiname’s subsequent order to exit the
vehicle. Twiname grabbed Briley’s left arm and struggled to pull
him from the vehicle. After Twiname let Briley pull his pants
up, Briley locked his legs under the steering column to secure
himself and began honking the horn. In an unsuccessful effort to
handcuff Briley, Twiname entered the SUV and ended up behind the
driver’s seat. From there, he wrapped his arms around Briley’s
neck and upper shoulders. Mace tried to assist his fellow
officer with a wristlock, to no avail. Twiname could not subdue
Briley.
The two plain-clothes officers, Usher and Brancato, arrived
on the scene, shouting “police” and “stop resisting.” J.A. 121,
212. After securing Briley’s companion, Usher joined Brancato on
the driver’s side of the car. As these two officers grabbed
Briley and attempted to wrest him from the vehicle, Briley tried
to push Usher out of the way and struck him in the arms, side,
and lower back. Usher suffered from various lower-back problems
after the incident.
During the fracas on the driver’s side of the car, Briley
kicked Brancato in the abdomen. Brancato then tried to loosen
Briley’s position in the vehicle by striking him on his side. As
the effort to subdue Briley continued, Briley placed another
kick -- this time, harder -- into Brancato’s abdomen. Brancato
4
later suffered from impairment of his pancreas and lost his
gallbladder.
Briley eventually agreed to exit the vehicle, but as soon
as he stepped out, the struggle resumed. Briley moved his arms
to keep the officers from handcuffing him and assumed an
aggressive stance. Brancato sought to control Briley by
attempting to grab his shoulder, but instead hit him on the side
of the head. Briley then rushed toward both Brancato and Usher
and pushed them backward. Even as Brancato slung his arm over
Briley’s shoulder, Briley managed to drag Brancato -- until
Twiname joined the fray along with Usher, and they all tumbled
to the ground. After further tussling with Briley on the ground,
the officers placed him in handcuffs. Briley finally ceased
resisting. He subsequently denied punching or kicking anyone,
and he said he did not know whether these individuals were in
fact police officers.
B.
A grand jury indicted Briley in the Eastern District of
Virginia. In the superseding indictment, the government alleged
three violations of 18 U.S.C. § 111(a) for Briley’s conduct
against the officers, as well as disorderly conduct. Count 1
charged Briley with the felony of forcibly assaulting,
resisting, opposing, impeding, and interfering with Officer
5
Brancato while making physical contact. Count 2 charged him with
the felony of forcibly resisting, opposing, impeding, and
interfering with Officer Usher while making physical contact
(but omitted a specific allegation of assault). Count 3 charged
him with the misdemeanor of forcibly resisting, opposing,
impeding, and interfering with Officer Twiname (but omitted
specific allegations of either assault or physical contact).
Last, Count 4 charged him with the misdemeanor of disorderly
conduct for recklessly creating a risk of causing public alarm,
nuisance, jeopardy, and violence by engaging in an obscene
display and act within federal land administered by the National
Park Service, in violation of 36 C.F.R. § 2.34(a)(2).
During a two-day jury trial, Briley contested all the
counts against him. The defense moved to dismiss Counts 2 and 3
on the ground that the government had failed to allege an
“assault” in those instances, but the district court denied the
motion. For Count 1, the district court instructed the jury that
the government had to prove that Briley “forcibly assaulted,
resisted, opposed, impeded, or interfered with” Officer
Brancato. J.A. 424 (emphasis added). For Counts 2 and 3, the
court told the jury that it was “not necessary to find assault”:
the government had to prove only that Briley “forcibly did any
one of the several alternative acts as charged” toward Officers
Usher and Twiname. J.A. 426.
6
The district court allowed the government, under Federal
Rule of Evidence 404(b), to introduce evidence of other
instances in which officers had caught Briley engaging in public
sexual activities within federal parklands -- including conduct
that occurred after the underlying January 2012 incident. The
defense objected to the introduction of Briley’s prior and
subsequent acts, but was overruled. The court allowed this
evidence as “well within the wheelhouse of permissible testimony
under Rule 404(b).” J.A. 57.
Although the government initially asked to introduce the
evidence of prior and subsequent acts as part of its case-in-
chief, it ended up calling the apprehending officers to testify
on rebuttal, after Briley’s own testimony. To help satisfy the
elements of the disorderly conduct charge, the government
presented evidence of Briley’s prior citations for masturbating
in public restrooms (in the Marina area in 2000, and at another
nearby federal park in 2001).
In addition, the court permitted the government to
introduce evidence of Briley’s conduct approximately two months
after the underlying altercation. On March 20, 2012, Officer
Enrique Wong had spotted Briley in the same Marina parking area
engaging in sexual activities with another man in the same SUV.
Wearing a police uniform and driving a marked police cruiser,
Wong found Briley nearly naked, putting on his pants, with the
7
vehicle’s front seats reclined. Wong arrested Briley and the
other man without resistance or further incident. At separate
bench trials, both were found guilty of disorderly conduct for
this activity.
The jury convicted Briley on all four counts. 1 The district
court sentenced him to a prison term of seventy-eight months,
with the sentences for the various counts running concurrently.
The court also imposed a term of three years of supervised
release and ordered Briley to pay $62,306.10 in restitution. The
lion’s share of that sum, $54,849.91, was directed to Officer
Brancato. After hearing expert medical testimony, the court
concluded that the trauma from Briley’s kicks had caused
1
Before the court gave the final charge to the jury, Briley
asked it to add “sexual orientation” to the instructed list of
factors (“race, color, religion, national ancestry, or gender”)
that should not influence the jury. The government did not
object, and the court stated that it would add the term to the
jury instruction “out of an abundance of caution.” J.A. 304. In
the actual instruction, however, the court omitted the term. The
defense did not object to the instruction at the time. Notably,
the court had questioned prospective jurors during voir dire
about their bias regarding sexual orientation, and it had issued
an opening instruction to the jury not to be influenced by
prejudices against either party. During closing arguments, the
government referenced the court’s planned instruction and told
the jury that Briley was “not on trial” for his sexual
orientation. J.A. 393. We find no error on this point. Briley
further argues that “this failure simply underscores and
magnifies the impact of the improperly admitted and prejudicial
subsequent acts propensity evidence,” Appellant’s Reply Br.
at 28 n.8 -- a point we address in Part III, infra.
8
Brancato’s pancreatitis, which in turn had compelled the removal
of his gallbladder. Briley now appeals his convictions.
II.
Briley first contends that assault is a required element of
the 18 U.S.C. § 111(a) offenses alleged in Counts 1, 2, and 3.
He maintains that the government failed to charge an actual
violation of § 111(a) in Counts 2 and 3, and that the district
court’s failure to mandate a specific finding of assault rather
than other predicate acts vitiated the convictions on all three
counts. We find no merit in Briley’s argument. The district
court read the statute properly.
A.
Section 111 protects both the physical safety of federal
officers and the integrity of their functions. See United States
v. Feola, 420 U.S. 671, 678-79 (1975). Indeed, through § 111
Congress wanted to afford “uniformly vigorous protection of
federal personnel” to the ”maximum” degree. Id. at 684. Under
the heading “Assaulting, resisting, or impeding certain officers
or employees,” 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
9
engaged in or on account of the performance of
official duties; or
(2) forcibly assaults or intimidates any person
who formerly served as a person designated in
section 1114 on account of the performance of
official duties during such person’s term of
service,
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,
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), 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.
18 U.S.C. § 111. The individuals designated in §§ 111(a)(1) and
(2) include “any officer or employee of the United States or of
any agency in any branch of the United States Government,” such
as a U.S. Park Police officer. Id. § 1114.
Several features are immediately evident from the statutory
structure. One is the type of officials who are protected.
Subsection 111(a)(1) applies to individuals actually engaged in
the performance of official duties, while § 111(a)(2) applies to
those formerly engaged in such duties. The relevant acts differ
for current officials in § 111(a)(1) (“forcibly assaults,
resists, opposes, impedes, intimidates, or interferes”) and
10
former officials in § 111(a)(2) (“forcibly assaults or
intimidates”). Id. § 111(a)(1), (2).
Another important feature is the statute’s graded penalty
structure. The punishments increase with the severity of the
crime. The final paragraph of § 111(a) provides that, “where the
acts in violation of this section constitute only simple
assault,” a person has committed a misdemeanor, punishable by up
to one year in prison. Id. § 111(a). Next, where the acts in
violation of § 111 entail either “physical contact with the
victim of that assault” or “the intent to commit another
felony,” a person has committed a felony, punishable by up to
eight years in prison. Id. Moving another step up, § 111(b)
specifies that, where a person performs “any” of the violative
acts outlined in § 111(a) and also either “uses a deadly or
dangerous weapon” or “inflicts bodily injury,” that person has
committed a felony, this time punishable by up to twenty years
in prison. Id. § 111(b); see also United States v. Campbell, 259
F.3d 293, 299 (4th Cir. 2001).
In essence, § 111 proscribes five types of offenses: a
misdemeanor (constituting only simple assault), two less serious
felonies (involving either physical contact or felonious
intent), and two more serious felonies (involving either a
weapon or bodily injury). Notably, in defining the penalties for
the various offenses, each statutory provision refers back to
11
the original list of violative acts against current or former
officials. 18 U.S.C. § 111(a) (“the acts in violation of this
section”); id. (“such acts”); id. § 111(b) (“any acts described
in subsection (a)”). For any of the § 111 penalty provisions,
then, a jury must find every element of a charged offense proved
beyond a reasonable doubt, for each step on the scale increases
the maximum statutory punishment. See Apprendi v. New Jersey,
530 U.S. 466, 490 (2000); Jones v. United States, 526 U.S. 227,
232 (1999); see also Campbell, 259 F.3d at 299 (Ҥ 111(b)
‘provide[s] for steeply higher penalties,’ which are
‘condition[ed] on further facts . . . that seem quite as
important as the elements’ of the principal crime found in
§ 111(a).” (alterations in original) (quoting Jones, 526 U.S. at
233)).
A number of observations emerge from this analysis of the
statutory structure. First, because Briley’s actions involved
current Park Police officers undertaking their official duties,
all six verbs listed in the disjunctive in § 111(a)(1) are
available. Second, the contours of the three § 111(a) counts
come into sharper relief. Counts 1 and 2 alleged “physical
contact” felonies against Officers Brancato and Usher,
respectively, while Count 3 alleged a misdemeanor against
Officer Twiname. By the terms of § 111(a), either a misdemeanor
or a “physical contact” felony may arise from any of “the acts
12
in violation of this section” -- namely, forcibly assaulting,
resisting, opposing, impeding, intimidating, or interfering with
current officers such as these. And third, the district court
squarely instructed the jury that the government shouldered the
burden of proving beyond a reasonable doubt that Briley had
“committed each and every element of the offense charged in the
indictment.” J.A. 420. The jury then returned a verdict finding
Briley guilty on all three § 111 counts. Although the statute is
written disjunctively (“or”), the jury found Briley guilty on
counts that were worded conjunctively (“and”).
B.
Briley now argues that assault is a required element not
only of the misdemeanor in § 111(a), but also of the statute’s
“physical contact” felony. Although the government charged
assault as part of the felony in Count 1 (against Brancato), it
chose not to charge assault for either the felony in Count 2
(against Usher) or the misdemeanor in Count 3 (against Twiname).
For several reasons, we do not think assault is a required
element.
First, Briley’s reading renders a slew of verbs in § 111(a)
largely surplusage. When we interpret statutes, we must
“construe all parts to have meaning.” PSINet, Inc. v. Chapman,
362 F.3d 227, 232 (4th Cir. 2004). We avoid interpretations that
13
would turn some statutory terms into nothing more than
surplusage. United States v. Medina, 718 F.3d 364, 367 n.1 (4th
Cir. 2013); In re Total Realty Mgmt., LLC, 706 F.3d 245, 251
(4th Cir. 2013). Subsection 111(a) expressly covers a person who
“forcibly assaults, resists, opposes, impedes, intimidates, or
interferes with” a federal official. 18 U.S.C. § 111(a).
Briley’s reading would render five of those six words -- all but
“assault” -- inoperative with respect to both the misdemeanor
and the “physical contact” felony. We must, however, ascribe
meaning to the five remaining verbs.
Second, and relatedly, Briley’s assessment of § 111 wanders
too far from congressional intent. Congress enumerated these six
verbs in the disjunctive. Why would Congress, in the same
subsection, then swiftly render five of these verbs extraneous
or defunct? The statute, moreover, consistently references the
same set of all six alternative verbs for each penalty provision
-- “the acts in violation of this section” for the misdemeanor
in § 111(a), “such acts” for the lesser felonies in § 111(a),
and “any acts described in subsection (a)” for the greater
felonies in § 111(b). Those phrases obviously denote all six
verbs. Why would Congress repeatedly refer back to the same list
of threshold acts for every designated offense, and yet covertly
assign varying acts to different crimes? The obvious answer is
that Congress had no such intention: a person could commit any
14
one of these six acts and still fall under the statute’s
coverage.
Third, Briley’s interpretation rips a big hole in the
statutory scheme. Although his reading largely preserves the
protections for the physical safety of federal officials, it
leaves those officials without protection for the carrying out
of federal functions. It misses the crucial point that § 111
safeguards not only physical safety, but also functional
integrity. See Feola, 420 U.S. at 678-79. More broadly, it
undercuts the statute’s mandate of full and vigorous
enforcement. See id. at 684.
Fourth, Briley’s take on § 111 produces an absurd result.
His reading would allow an individual to commit an array of
forcible acts against federal officials performing government
functions without criminal consequence. That person could use
force to resist federal officials, to oppose them, to impede
them, to intimidate them, and to interfere with them -- and yet
escape the reach of § 111. Apparently, such a person could evade
sanction so long as he or she did not also (1) act with the
intent to commit another felony, (2) use a deadly or dangerous
weapon, or (3) inflict bodily injury. See Appellant’s Br. at 14.
That too leaves a patchwork statute, not the comprehensive
protections Congress intended.
15
Finally, although some of our sister circuits have read
§ 111 somewhat differently, the operative distinctions between
those approaches and the conclusion we draw today are limited.
Some circuits have agreed with us that § 111 prohibits the six
different kinds of enumerated acts and that, specifically, the
misdemeanor provision is not limited to assault. United States
v. Williams, 602 F.3d 313, 317-18 (5th Cir. 2010); cf. United
States v. Gagnon, 553 F.3d 1021, 1027 (6th Cir. 2009) (adding
that “Congress . . . used the phrase ‘simple assault’ as a term
of art to incorporate the actions proscribed in § 111(a)(1) and
§ 111(a)(2)”). The Second Circuit has taken an ostensibly
varying view of § 111 and concluded that some form of “simple
assault” is required for the misdemeanor provision. United
States v. Davis, 690 F.3d 127, 135 (2d Cir. 2012) (“[F]or a
defendant to be guilty of the misdemeanor of resisting arrest
under Section 111(a), he necessarily must have committed common
law simple assault.”). Whatever variance the latter decision
manifests arises seemingly from facts that involved primarily
passive resistance toward all the officers involved, compared
with Briley’s active, forcible actions against the Park Police.
See Davis, 690 F.3d at 129-30 (“Davis did not fight back. . . .
There was no evidence that Davis threatened or struck out at any
of the agents.”). Given the statute’s crucial adverb --
“forcibly” -- the factual distinctions are significant. Facts of
16
the more passive kind fall much closer to the nonforcible
borderline. Whatever daylight lies between the circuits’
approaches, it seems to us that the practical distinction is not
a large one.
For those reasons, it was proper for the district court to
instruct the jury that Briley could have committed any of the
threshold acts charged -- not “assault” only -- to be found
guilty of a § 111 offense, so long as the other elements of the
offense were satisfied.
III.
Briley also argues that the district court erred in
admitting evidence of a subsequent crime under Federal Rule of
Evidence 404(b). Over the defense’s objection, the district
court allowed the government to introduce evidence of Briley’s
conduct at the same Washington Sailing Marina parking area in
March 2012, about two months after the underlying incident. A
Park Police officer had observed Briley and another man engaging
in sexual activities in the same SUV. He arrested both men and
faced no resistance. At trial, the government sought to
introduce evidence of the March arrest to show Briley’s reckless
17
intent for the disorderly conduct alleged in Count 4. 2 We do not
think this evidence should have been admitted. But given the
overwhelming evidence from the underlying January incident, we
find no reversible error.
A.
Under Rule 404(b), “[e]vidence of a crime, wrong, or other
act is not admissible to prove a person’s character in order to
show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b)(1). Such
evidence, however, “may be admissible for another purpose, such
as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”
Id. 404(b)(2).
Rule 404(b) is a rule of inclusion. United States v.
Lespier, 725 F.3d 437, 448 (4th Cir. 2013); see United States v.
2
The National Park Service regulation invoked in Count 4
provides:
A person commits disorderly conduct when, with intent
to cause public alarm, nuisance, jeopardy or violence,
or knowingly or recklessly creating a risk thereof,
such person . . . [u]ses language, an utterance, or
gesture, or engages in a display or act that is
obscene, physically threatening or menacing, or done
in a manner that is likely to inflict injury or incite
an immediate breach of the peace.”
36 C.F.R. § 2.34(a)(2).
18
Van Metre, 150 F.3d 339, 349 (4th Cir. 1998) (noting that the
Rule’s list of allowable purposes is “illustrative, rather than
exclusive”). As we have long maintained, the Rule’s inclusive
nature militates toward “‘admitting all evidence of other crimes
or acts except that which tends to prove only criminal
disposition.’” Lespier, 725 F.3d at 448 (quoting United States
v. Rooks, 596 F.3d 204, 211 (4th Cir. 2010)); see, e.g., United
States v. Masters, 622 F.2d 83, 85 (4th Cir. 1980). Rule 404(b)
permits the admission of evidence of not only prior but also
subsequent acts. United States v. Mohr, 318 F.3d 613, 617 (4th
Cir. 2003).
We do not overturn Rule 404(b) rulings lightly. District
judges enjoy broad discretion to determine what evidence should
be admitted under the Rule, which resides at the core of the
trial judge’s function of handling evidentiary challenges. Under
this standard, a district court abuses its discretion “‘when it
acts arbitrarily or irrationally, fails to consider judicially
recognized factors constraining its exercise of discretion,
relies on erroneous factual or legal premises, or commits an
error of law.’” Rooks, 596 F.3d at 210 (quoting United States v.
Delfino, 510 F.3d 468, 470 (4th Cir. 2007)).
We review evidentiary determinations for harmless error.
United States v. Madden, 38 F.3d 747, 753 (4th Cir. 1994). A
nonconstitutional error ceases to be harmless if it had a
19
“substantial and injurious effect or influence in determining
the jury’s verdict.” Kotteakos v. United States, 328 U.S. 750,
776 (1946). The core of the inquiry is whether the error
affected the defendant’s substantial rights. See Fed. R. Crim.
P. 52(a). We do not reverse evidentiary rulings for
inconsequential technicalities. Rather, “reversal is reserved
for more serious errors that affect substantial rights or that
directly affect the outcome of a case.” United States v.
Ferguson, 752 F.3d 613, 619 (4th Cir. 2014).
B.
While Rule 404(b) is an inclusive rule, it is not all-
inclusive. The “other bad act” admitted in this instance came
too close to pure propensity evidence.
The relevance of the March 2012 evidence to proving
Briley’s intent or state of mind in January stands in some
question. It is true that we make “no distinction” between prior
and subsequent bad acts under Rule 404(b), United States v.
Lighty, 616 F.3d 321, 352 n.33 (4th Cir. 2010), with the timing
of the act often being a matter of evidentiary weight for the
jury, see Huddleston v. United States, 485 U.S. 681, 689 (1988);
United States v. Hadaway, 681 F.2d 214, 217-18 (4th Cir. 1982).
And the January and March episodes do share some similar
features. Both times, the Park Police found Briley engaging in
20
sexual conduct, in the same vehicle, in the same general area.
At another level, however, the character of the acts was quite
different. The March incident was largely uneventful. When
confronted by Officer Wong, Briley did not resist arrest. The
January incident, on the other hand, involved a violent
confrontation that went to the heart of the obstructive activity
charged under 18 U.S.C. § 111.
The evidence from January formed a compelling and
consistent case against Briley on all four counts. The jury
heard about the encounter and the ensuing altercation with Park
Police in painstaking and vivid detail. The January evidence
described Briley’s meeting with his companion and their
preparations to engage in sexual relations. It showed the
extended struggle between Briley and the crew of officers trying
to detain him. It conveyed his determined resistance to the
officers both inside and outside the vehicle. It revealed the
damaging injuries he inflicted on the officers. As officer after
officer took the witness stand, and as Briley’s companion
recounted the events inside the vehicle, the jury learned about
the January incident from every angle.
The government introduced the March arrest in support of
the disorderly conduct charge in Count 4. But even with a
recognition of the uncertainties of trial outcomes, the
prosecution had to know it had more than enough evidence from
21
the January incident alone to prove that Briley had engaged in
an unlawful act at the Marina, in violation of the disorderly
conduct regulation. The district court told the jury that Briley
could be deemed to have acted recklessly, as required by 36
C.F.R. § 2.34(a)(2), if he knew that the obscene act was
“inappropriate” and that it would “cause public alarm,
[nuisance], jeopardy, or violence if it was seen.” J.A. 430.
From the January incident, there was more than ample evidence
for a rational jury to conclude that Briley’s conduct cleared
that modest bar. With so few lingering questions about Briley’s
criminal conduct in January, and the evident ability of intimate
sexual activities in public places to constitute disorderly
conduct on their own terms, the need to introduce the March
incident seems dubious at best. See United States v. Queen, 132
F.3d 991, 997 (4th Cir. 1997) (listing necessity as a factor in
Rule 404(b) analysis).
Also relevant in the Rule 404(b) analysis is the comparison
of the probative value and prejudicial nature of the evidence.
See Fed. R. Evid. 403; Queen, 132 F.3d at 997 (holding that, as
part of the Rule 404(b) inquiry, “the evidence’s probative value
must not be substantially outweighed by confusion or unfair
prejudice in the sense that it tends to subordinate reason to
emotion in the factfinding process”). In Briley’s case, there
was some slight probative value to the evidence. The March
22
arrest did bear some connection to the purposes for which it was
offered, in the sense that it underscored Briley’s recklessness,
as required by the disorderly conduct regulation.
On the other hand, there was a risk in using the March
incident at trial. That risk inheres in all propensity evidence,
namely that the government could deploy the subsequent act as a
character smear that might actually infect the entirety of the
trial -- by portraying the defendant in the eyes of the jury as
a person deserving of particular condemnation almost
irrespective of the various forms of misconduct of which he
stood accused. But of course Rule 404(b) expressly forbids
evidence to be used in that way. The March evidence carried a
risk of shifting the trial’s focus away from the confrontation
whose violent and injurious nature had given rise to the
prosecution, and toward the portrayal of a character of general
disrepute. Given that there was more than enough evidence from
the January incident to support all the charges in the
indictment, including the disorderly conduct charge, the need to
push the defendant’s personal habits and inclinations forward
raises Rule 403 concerns.
The trouble with such character wounds is that they bleed,
in the sense that “bad people” may be presumed by the factfinder
to commit no end of criminal acts. The government unquestionably
had every right to charge Count 4. But to use this least serious
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charge as a conduit for bringing in unseemly acts not charged in
the indictment -- which then might affect consideration of the
more serious charges -- is a different matter. Shining such a
bright light on Briley’s other sexual activities risked
directing the jury’s attention to the wrong place.
Nevertheless, the evidence from the beginning to the end of
the January incident is compelling and incriminating as to all
the charged counts. When viewed in the context of the barrage of
evidence from the January incident -- for the disorderly conduct
charge as well as the three § 111 charges -- the error in
admitting the March evidence was plainly harmless.
An array of witnesses gave clear, compelling, and
consistent accounts about Briley’s actions. Officers Brancato,
Usher, Mace, and Twiname each testified about the events of that
January afternoon. Brancato and Usher discussed their
surveillance of Briley and the other man, and they described
Briley’s sexual conduct that was visible from outside, through
the SUV’s window. The four officers recounted the details of the
altercation that followed -- the initial approach, the swift
compliance by Briley’s companion, Briley’s refusal to exit, his
fierce resistance against being removed from the vehicle, his
injurious strikes against the officers, the continued
skirmishing after he exited the vehicle, and his eventual
arrest. Briley’s companion (who had signed an informal immunity
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agreement) also testified about his interactions with Briley and
the officers. He related his personal history with Briley, their
meeting in the Marina parking area, their preparations for
sexual relations, their efforts to avoid detection, and the
confrontation with the Park Police.
It is plain that the jury credited the version of the facts
put forward by the Park Police and by Briley’s own companion and
disbelieved Briley’s version of the incident, namely that he did
not punch or kick anyone and was unaware the individuals were
police officers. A plethora of testimony established that Briley
had engaged in intimate sexual activities in a public place, and
that he had forcibly resisted and struck the officers trying to
arrest him. The district court, for its part, properly
instructed the jury under § 111 and the disorderly conduct
regulation and offered a range of other cautionary directives.
We can say, “with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole,”
that the jury’s consideration was not “substantially swayed” by
Officer Wong’s testimony about the March incident. Kotteakos,
328 U.S. at 765. The absence of necessity for admitting “other
bad acts” evidence will not invariably link up with a finding of
harmless error, but here we are confident that the error
affected neither Briley’s substantial rights nor the outcome of
the case. See Ferguson, 752 F.3d at 619. Despite the evident
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dangers of admitting the evidence, we are not left in “grave
doubt” about its impact. Kotteakos, 328 U.S. at 765. Our charge
is to detect wrongs that trenched upon a defendant’s substantial
rights, and the error did not do so here.
IV.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED
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