The claimant, Giraldo, and Officer Daniel Parodi were in charge of distributing linens to the SHU cells. Giraldo heard the defendant, Martinez, yelling when he turned to get the towel. At that time he noticed the defendant standing with his hands outside the food slot and spraying a liquid all over Parodi. The claimant pushed defendant’s hands back into the cell and closed the food slot. However, a small amount of the liquid also got on Giraldo’s shirt. The liquid seemed to be urine because of its smell.
The US Court of Appeal affirmed the district court’s judgment.
According to 18 U.S.C.S. § 111(a), “a person commits forcible assault if that person forcibly assaults, resists, opposes, impedes, intimidates or interferes with a federal officer in the performance of his official duties”.
The Mandatory Victims Restitution Act (MVRA) applies to a conviction for an act of violence such as the use, attempted or threatened use of physical force against the person or property of another; and the act should cause other person a physical injury or pecuniary loss [18 U.S.C.S. §§ 16, 3663A(c)(1)]. To this regard the restitution order shall require the defendant to pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric and psychological care [18 U.S.C.S. § 3663A (b)(2)(A)].
(a) whether conviction of forcible assault on a federal corrections officer committed in violation of 18 U.S.C.S. § 111(a) was correctly entered and (b) whether the restitution order in sentence of the defendant was truly justified.
“All other cases” of forcible assault in 18 U.S.C.S. § 111(a) encompasses cases of willful attempt and threat to inflict serious bodily injury. The act has to show an apparent present ability to cause immediate serious bodily injury or death. But according to the Court the second category of forcible assault should not necessarily involve actual physical contact. Further, the Court held: (1) the district court did not err in instructing the jury that forcible assault was an assault which resulted in physical contact but which did not involve a deadly weapon or bodily harm because the assault with which defendant was charged fell under the “all other cases” provision of § 111(a), which covered an assault that involved physical contact, rather than mere threats or attempts to inflict bodily injury, which constituted “simple assault” under § 111(a); (2) the evidence was sufficient to support the conviction; (3) the district court did not err in refusing to allow defendant, during closing argument, to discuss the Government’s failure to produce a videotape of the incident because there was no evidence that any recording existed; and (4) the district court properly ordered defendant to pay the officer’s medical bills pursuant to 18 U.S.C.S. §§ 16, 3663A(c)(1) even though the officer ultimately tested negative for any communicable disease.
Most circuits view 18 U.S.C.S. § 111 as creating three categories of forcible assault. The United States Court of Appeals for the Eighth Circuit, however, notes that. The circuits have different views as to (a) whether physical contact is an element of the second category of forcible assault; and (b) whether the conduct punishable under 18 U.S.C.S. § 111(b) does constitute a third distinct category or should form a subcategory of the “all other cases” conduct.