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.
2

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 
3

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 
4

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 
5

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
6

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.
7

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-inchief, 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 
8

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.
9

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 
10

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 
11

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 
12

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 (“§ 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 
13

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 
14

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 
15

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.
16

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 
17

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 
18

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).
19

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 
20

“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 allinclusive. 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 
21

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 
22

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 
23

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 
24

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 
25

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 
26

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