*

The Honorable Amul Thapar, United States District Judge for the Eastern District of Kentucky,

sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0156p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PHILLIP ZABAWA,

 Defendant-Appellant.

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No. 11-1519

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:04-cr-80844-1—Gerald E. Rosen, Chief District Judge.

Argued: October 5, 2012

Decided and Filed: June 3, 2013 

Before: COLE and KETHLEDGE, Circuit Judges; and THAPAR, District Judge.*

_________________

COUNSEL

ARGUED: John R. Minock, CRAMER & MINOCK, PLC, Ann Arbor, Michigan, for

Appellant. Kathleen Moro Nesi, UNITED STATES ATTORNEY’S OFFICE, Detroit,

Michigan, for Appellee. ON BRIEF: John R. Minock, CRAMER & MINOCK, PLC,

Ann Arbor, Michigan, for Appellant. Kathleen Moro Nesi, UNITED STATES

ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.

_________________

OPINION

_________________

KETHLEDGE, Circuit Judge. “Inflict” is a narrower term than “cause.” Here,

while in federal custody, Phillip Zabawa assaulted a federal law enforcement officer.

The officer responded by headbutting Zabawa, which left the officer with a cut over his

1
No. 11-1519 United States v. Zabawa Page 2

eye. A federal grand jury later indicted Zabawa for assaulting a federal officer in

violation of 18 U.S.C. § 111(a)(1) and (b). Zabawa was convicted of both offenses. But

§ 111(b) specifies that the defendant must “inflict[]” the predicate injury to the officer,

rather than just proximately cause it; and here, the officer himself admitted that his

injury might have resulted from his application of force (i.e., the headbutt) to Zabawa,

rather than from any force Zabawa applied to him. The district court found this

distinction irrelevant, construing “inflict” to mean “cause.” We respectfully disagree,

and reverse Zabawa’s conviction under § 111(b).

I.

On December 2, 2003, Zabawa was transferred from the Wayne County Jail to

the Theodore Levin U.S. Courthouse for a sentencing hearing. When Zabawa arrived

at the courthouse lockup, Detention Enforcement Officer Gregory Shelton sent him to

a cell, telling him to close the door behind him. Zabawa refused, saying “he’d been

locked up for 15 years and the last thing he was going to do was close his own cell

door.” Zabawa was agitated, so Shelton sent him to a nearby interview room to separate

him from the other prisoners.

Detention Enforcement Officer David Murphy entered the interview room.

When Murphy asked what was wrong, Zabawa exploded. He told Murphy that he was

tired of being moved around and that, if he “ever got a gun, he’d be sure to use it.”

Murphy replied, “you’re not going to get one here.” Zabawa responded, “don’t bet on

it.”

At that point, Murphy decided to handcuff Zabawa to prevent him from

disarming an officer. Before he could do so, however, Zabawa lunged at Murphy and

started punching him. Murphy blocked the attack, and then got Zabawa onto the floor

by elbowing, kneeing, and headbutting him. After a brief struggle, Murphy handcuffed

Zabawa with the help of other officers.
No. 11-1519 United States v. Zabawa Page 3

During the fight, Murphy suffered a cut over his eye that required six stitches.

Murphy later testified that he did not know whether the cut happened when he

headbutted Zabawa or when Zabawa punched him.

On October 13, 2004, a grand jury indicted Zabawa for assaulting and inflicting

bodily injury on a federal officer in violation of 18 U.S.C. § 111(a)(1) and (b). The

indictment alleged only one injury: the cut above Murphy’s eye. Zabawa pled not

guilty. He then returned to state custody.

Although the district court set a trial date of February 8, 2005, Zabawa’s trial did

not take place for more than five and a half years. Between January 2005 and May 2006,

Zabawa and the government agreed 10 times to postpone the trial. Then, on May 30,

2006, Zabawa’s attorney moved to evaluate Zabawa’s competency. The district court

granted the motion, but did not enter a written order for a competency evaluation until

February 2007.

Twenty-two months later, on December 2, 2008, the district court ordered

Zabawa transported to a federal facility for the evaluation. But that order was not carried

out, so the court issued a second transportation order on March 20, 2009. After the

second order, it took 26 days to transport Zabawa to the evaluation, another 37 days to

evaluate him, and 18 days more to return him to state custody. In July 2009, the

psychologist who evaluated Zabawa sent the district court a report concluding that

Zabawa was competent to stand trial. The court found Zabawa competent a month later.

Finally, in October 2009, Zabawa moved to dismiss the indictment on grounds

that the delay in his federal prosecution had violated his statutory and constitutional

rights to a speedy trial. The pendency of that motion pushed the trial back another

10 months. The district court denied the motion.

The court held a bench trial between August 30 and September 1, 2010, after

which it found Zabawa guilty of inflicting bodily injury on Officer Murphy in violation

of § 111(a)(1) and (b). The court sentenced Zabawa to 222 months’ imprisonment. This

appeal followed.
No. 11-1519 United States v. Zabawa Page 4

II.

A.

Zabawa challenges the sufficiency of the evidence supporting his conviction for

“inflict[ing] bodily injury” on Officer Murphy in violation of 18 U.S.C. § 111(a)(1) and

(b). But the relevant facts are undisputed: the cut over Murphy’s eye might have

resulted from Murphy’s own headbutt, rather than from a punch by Zabawa. What the

parties dispute, instead, is what “inflict” means. At the time of the fight between

Zabawa and Murphy, § 111(a)(1) provided:

Whoever . . . forcibly assaults, resists, opposes, impedes, intimidates, or

interferes with any [officer or employee of the United States] 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,

and in all other cases, be fined under this title or imprisoned not more

than 8 years, or both.

Section 111(b) further provided: “Whoever, in the commission of any acts

described in subsection (a), uses a deadly or dangerous weapon . . . or inflicts bodily

injury, shall be fined under this title or imprisoned not more than 20 years, or both.”

(Emphasis added.) Thus, § 111 created three crimes: simple assault, punishable by up

to one year’s imprisonment; all other assaults, punishable by up to eight years’

imprisonment; and assault in which the defendant uses a deadly or dangerous weapon

or inflicts bodily injury, punishable by up to 20 years’ imprisonment.

The question here is whether Zabawa “inflicted” the cut to Murphy’s eyebrow

even if the cut resulted from the actions (i.e., the headbutt) of Murphy himself. The

government argues the answer is yes: in its view, “inflict[]” as used in § 111(b) is

synonymous with proximate cause, and Zabawa proximately caused all the injuries in

the fight—because he started it. In response, Zabawa argues that inflict refers only to

a particular type of cause, namely, to cause harm (usually a physical injury) by

“strik[ing] against”; and moreover that, since the statute uses the active voice, the

defendant must be the one who does the striking. The district court adopted the
No. 11-1519 United States v. Zabawa Page 5

government’s interpretation. We review the court’s interpretation de novo. United

States v. Gagnon, 553 F.3d 1021, 1025 (6th Cir. 2009).

“Inflict” as used in § 111(b) is not defined by the statute itself. When a statute

contains an undefined term, we give the term its ordinary meaning. United States v.

Lumbard, 706 F.3d 716, 723 (6th Cir. 2013). In determining that meaning, dictionaries

are a good place to start. One dictionary defines “inflict” to mean “to cause (something

unpleasant) to be endured” or, alternatively, “to give by or as if by striking.”

Merriam-Webster’s Collegiate Dictionary 599 (10th ed. 1994). The former definition

incorporates the word “cause” and thus arguably supports the government’s

interpretation here; the latter definition is precisely the one that Zabawa advocates. Two

other dictionaries offer nearly the same two definitions. See Random House Unabridged

Dictionary 979 (2d ed. 1993); Webster’s Third New International Dictionary of the

English Language Unabridged 1160 (1993). Thus, in the abstract, the dictionaries lend

some support to each party’s interpretation.

Our task in construing a statute, however, is to find not merely a reasonable

interpretation, but the best one. (Agency cases are an exception.) And on balance the

ordinary usage of “inflict” favors Zabawa’s interpretation. “Inflict” is a more

specialized term than “cause.” Inflict normally refers to direct physical causation of

physical harm: “inflicted heavy losses on the enemy; a storm that inflicted widespread

damage.” American Heritage Dictionary 926 (3d ed. 1992). (When one departs from

this sense of inflict—“the speaker inflicted a long and boring speech upon the

audience”—the irony is usually intended.) This meaning holds almost anywhere one

looks: the thermal and barometric conditions giving rise to a storm, for example, do not

inflict widespread damage; the storm does. Othello dies from a wound that he inflicts

upon himself, even though Iago proximately caused him to do it. Field Marshal

Montgomery blundered by ordering his paratroopers to take “a bridge too far” at Arnem,

but he did not inflict the heavy losses that followed; the Germans did. And neither did

General Eisenhower inflict the injuries that his men suffered on D-Day.
No. 11-1519 United States v. Zabawa Page 6

So-called synonymous words often have significant variations of meaning.

“Venerable” is more respected than “old”; “puerile” is more cutting than “childish”;

“equanimity,” more admirable than “calm.” In each instance the specialized term

conveys a nuance that the more general term does not. The same is true here. Inflict

means something more precise—and thus something narrower—than merely “[t]o be the

cause of or reason for; result in.” American Heritage Dictionary 305 (definition of

“cause”). What inflict conveys is a sense of physical immediacy: to cause harm

directly, by physical force.

That § 111(b) uses “inflict” in this sense is entirely consistent with the

provision’s context: “[w]hoever . . . inflicts bodily injury[.]” 18 U.S.C. § 111(b)

(emphasis added). Thus, as used in § 111(b), “inflict” refers to physical, not proximate,

causation. The person whose action was the direct physical cause of Murphy’s

laceration, therefore, is the person who inflicted it for purposes of § 111(b). And even

the government admits that Murphy himself might have been that person.

To all this the government offers a policy-based response. Citing an 1868 case

for the proposition that we should read § 111(b) in a manner that “promotes the policy

and objectives of the legislature[,]” the government asserts that our reading of “inflict”

would frustrate the statute’s purpose “to protect federal officers from a wide range of

harmful conduct.” But disembodied notions of statutory purpose cannot override what

the statute actually says. And here the statute says inflict, not cause. Moreover, our

reading does not frustrate what the government identifies as the statute’s purpose. Eight

years is a substantial term of imprisonment—which in this case would amount to more

than a year per stitch. The 20-year term remains available in cases where the

defendant’s own actions directly cause injury. And otherwise it is hardly absurd to

conclude that, in choosing the word “inflict” rather than “cause,” Congress meant to

tighten the causal chain between action and injury before sending a man to prison for 20

years.

Two other circuits have addressed the meaning of inflict as used in § 111(b); one

decision is consistent with our interpretation, the other probably not. The inconsistent
No. 11-1519 United States v. Zabawa Page 7

decision is United States v. Garcia-Camacho, 122 F.3d 1265 (9th Cir. 1997), in which

the Ninth Circuit conflated “cause” and “inflict” in a single conclusory paragraph. Id.

at 1269. On its facts, however, the result there is likely consistent with our interpretation

of the statute here, because there the officer’s injury arguably resulted directly from the

defendant’s application of physical force to the officer’s body. Id. at 1267.

The consistent decision is United States v. Jackson, 310 F.3d 554 (7th Cir. 2002)

(Easterbrook, J.). There, Ray Jackson fled when several deputy marshals tried to arrest

him. The marshals eventually cornered and tackled Jackson. He then started twisting

as hard as he could to roll away from the marshals. One of those twists apparently tore

a ligament in Deputy Marshal Randy Scott’s thumb as he tried to handcuff Jackson.

The issue before the Seventh Circuit was whether the evidence was sufficient to

support Jackson’s conviction under § 111(b). Interpreting the same language that we

interpret here, the Seventh Circuit first concluded—and we agree—that “inflict” does

not require any intent to cause to harm. Id. at 557. At that point, however, the court did

not simply proceed to analyze whether Jackson had proximately caused Scott’s injury.

(Obviously he did.) Instead, the court adopted the same core premise that we adopt here:

“[d]oubtless ‘inflict’ is more restrictive than ‘cause[.]’” Id. The court then rejected

Jackson’s challenge on the facts, reasoning that the torn ligament “occurred while Scott

was grappling with Jackson, who applied force directly to Scott’s person.” Id. (emphasis

added). To cause injury in that manner, the court said, “satisfies the normal

understanding of ‘inflict.’” Id.

 Here, the proofs do not satisfy the normal understanding of “inflict.” We

conclude from the record that the government did prove beyond a reasonable doubt that

Zabawa was guilty of non-simple (i.e., felony) assault in violation of § 111(a)(1). But

the government did not prove that Zabawa inflicted Murphy’s laceration for purposes

of § 111(b).
No. 11-1519 United States v. Zabawa Page 8

B.

Zabawa also challenges his convictions under both § 111(a)(1) and (b) (the latter

challenge is moot, given our holding above) on grounds that the government violated his

statutory and constitutional rights to a speedy trial.

1.

Zabawa argues that he was tried in violation of the Speedy Trial Act, 18 U.S.C.

§ 3161 et seq. The Act requires that a defendant’s trial begin within 70 days of the

information or indictment, or his first appearance in court, whichever occurs later.

18 U.S.C. § 3161(c)(1). But the Act excludes certain kinds of delay from the 70-day

limit. See id. § 3161(h). We review the district court’s application of the Act de novo.

United States v. Gardner, 488 F.3d 700, 717 (6th Cir. 2007).

Here, the parties agree that at least 55 “countable days” elapsed between

Zabawa’s first court appearance and his trial. The parties also agree that the Act

excludes the delay that resulted from the trial continuances, see

18 U.S.C. § 3161(h)(7)(A), Zabawa’s speedy-trial motion, see id. § 3161(h)(1)(D), and

30 days of his competency evaluation, see id. § 3161(h)(1)(A). But the parties disagree

as to whether four other blocks of time should count against the speedy-trial clock. We

address each in turn.

First, Zabawa argues that 108 countable days elapsed between December 2, 2008

(when the district court first ordered that the government transport him to his

competency evaluation) and March 20, 2009 (the second time the court issued a

transportation order). Section 3161(h)(1)(F) generally excludes from the speedy-trial

clock any “delay resulting from transportation of any defendant . . . to and from places

of examination.” That section also provides, however, that “any time consumed in

excess of ten days from the date [of] . . . an order directing such transportation and the

defendant’s arrival at the destination shall be presumed to be unreasonable[.]”

(Punctuation omitted.) If the government does not rebut the presumption of

unreasonableness, that time counts against the speedy-trial clock. See United States v.
No. 11-1519 United States v. Zabawa Page 9

Tinklenberg, 579 F.3d 589, 596 (6th Cir. 2009), rev’d in part on other grounds by 131

S. Ct. 2007 (2011).

Here, the government rebutted the presumption. After the district court issued

the first transportation order, the marshals repeatedly attempted to transport Zabawa

from state custody to federal custody. But the Michigan Department of Corrections

repeatedly refused (each time for good reasons) to release him. On the first occasion,

Zabawa had broken his hand in a fight earlier that year and had several follow-up

medical appointments to complete. The State thereafter delayed Zabawa’s release when

he went on a one-month hunger strike. The State delayed his release again after placing

him in protective custody because of Zabawa’s own disciplinary violations. These

delays were Zabawa’s fault, not the government’s, and thus do not count against the

clock. See United States v. Turner, 602 F.3d 778, 785 (6th Cir. 2010).

Second, Zabawa argues that part of his competency evaluation should count

against the 70-day limit. Here he relies on 18 U.S.C. § 4247(b), which generally limits

a defendant’s psychiatric evaluation to 30 days. Zabawa’s evaluation lasted 37 days, so

he says we should add 7 days to the speedy-trial clock. But this argument is foreclosed

by precedent: “§ 4247(b) does not limit the time period for a competency evaluation

with respect to calculations under the Speedy Trial Act.” Tinklenberg, 579 F.3d at

595–96 (quotation marks omitted).

Third, Zabawa argues that 18 transportation days elapsed on his trip from the

competency evaluation back to state custody. We disagree: a motion by Zabawa was

pending during all 18 of those days, which means they are excluded under another

provision of the Act. See § 3161(h)(1)(D).

Fourth, Zabawa argues that the speedy-trial clock resumed when the district court

received his competency evaluation, rather than later, when the court found him

competent. Zabawa says that should add another 36 days. This argument too is

foreclosed by precedent: the clock stays stopped until the court makes a competency

finding. See Tinklenberg, 579 F.3d at 597.
No. 11-1519 United States v. Zabawa Page 10

In sum, only 55 countable days elapsed between Zabawa’s first court appearance

and his trial. The government therefore did not violate his rights under the Speedy Trial

Act.

2.

Zabawa also argues that he was denied his Sixth Amendment right to a speedy

trial. We review the court’s decision de novo. United States v. Young, 657 F.3d 408,

413–14 (6th Cir. 2011). Whether the government violated Zabawa’s Sixth Amendment

right depends on four factors: the “[l]ength of delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo,

407 U.S. 514, 530 (1972).

The first factor is a threshold requirement: we only consider the remaining

Barker factors if the delay is longer than one year. See United States v. Robinson,

455 F.3d 602, 607 (6th Cir. 2006). Here, the delay was six years, so we consider the

remaining factors.

The second Barker factor looks at “whether the government or the criminal

defendant is more to blame for [the] delay.” Maples v. Stegall, 427 F.3d 1020, 1026 (6th

Cir. 2005) (alteration in original) (quotation marks omitted). Here, Zabawa caused eight

months of delay when his attorney (not his lawyer on appeal) promised but then failed

to prepare a proposed order for his competency evaluation. Zabawa caused another

11 months of delay when his attorney again promised but failed to arrange for a doctor

to perform the evaluation. Zabawa caused three more months of delay through his

disruptive behavior in state prison—the government did not force him to break his hand

in a fight or to start a one-month hunger strike. Zabawa also caused a 16-month delay

when he agreed to postpone his trial 10 times between January 2005 and May 2006, and

another 10-month delay when he filed a motion to dismiss for speedy-trial violations.

A total of 70 months passed between Zabawa’s indictment and his trial; Zabawa

is to blame for at least 48 of them. The second factor therefore weighs against him. See

United States v. Brown, 498 F.3d 523, 531 (6th Cir. 2007).
No. 11-1519 United States v. Zabawa Page 11

As to the third Barker factor, Zabawa did not assert his right to a speedy trial

until October 20, 2009. By that point, most of the delay had already occurred. This

failure to assert his right makes his claim dubious. See id. at 531–32.

Finally, the fourth Barker factor “requires the defendant to show that substantial

prejudice has resulted from the delay.” Robinson, 455 F.3d at 608 (quotation marks

omitted). Zabawa contends that the delay has affected his ability to interview potential

witnesses. Specifically, he says that he could only find two of the other six prisoners in

lockup at the time of the attack, neither of whom would agree to talk to him. But

Zabawa has not explained what these prisoners could have said to help him, given that

they were locked up down the hall during the assault. Zabawa also contends that,

because his attack on Murphy was so brief, any witness’s memory would have faded

significantly over time. But mere “loss of memory is an insufficient reason to establish

prejudice.” United States v. Wright, 343 F.3d 849, 860 (6th Cir. 2003).

In the alternative, Zabawa argues that we should treat the delay here as

presumptively prejudicial because it was extreme. The presumption of prejudice only

applies, however, when the delay is attributable to the government’s negligence. See

United States v. Ferreira, 665 F.3d 701, 706 (6th Cir. 2011) (citing Doggett v. United

States, 505 U.S. 647, 657 (1992)). And here, most of the delay was Zabawa’s fault.

The Barker factors weigh heavily against Zabawa. Thus, the government did not

violate his Sixth Amendment right to a speedy trial.

* * *

We affirm Zabawa’s conviction under § 111(a)(1), reverse his conviction under

§ 111(b), and remand the case for further proceedings consistent with this opinion.