UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, Case Number 15-20220

v. Honorable David M. Lawson

GUILLERMO FELIX-MARQUS,

Defendant.

______________________________/

OPINION AND ORDER DENYING MOTION TO DISMISS

COUNT II OF THE INFORMATION

Title 18, section 111(a)(1), United States Code states that a person is guilty of a felony if he

“forcibly assaults, resists, opposes, intimidates or interferes with [a federal law enforcement officer]

. . . where such acts involve physical contact with the victim of that assault.” Defendant Guillermo

Felix-Marqus, who is charged in count II of an information with such a felony, has moved under

Federal Rule of Criminal Procedure 12(b)(3)(B)(v) to dismiss count II on the ground that the

defendant is not charged therein with “assaulting” any of the agents and, according to the affidavits

offered in support of the complaint in this case, any physical contact between the defendant and the

agents was initiated by the agents and not the defendant. The defendant ultimately may have a good

point, if the facts eventually fall his way. But at this stage of the case, the focus must be confined

to the pleadings — here, the information — which contains allegations that make out the felony

offense charged under 18 U.S.C. § 111(a). Therefore, the Court will deny the motion to dismiss

count II of the information. 

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I.

This case was initiated by a complaint issued by Magistrate Judge R. Steven Whalen on

March 30, 2015. The affidavit filed in support of the complaint states that on March 20,

Immigration and Customs Enforcement (ICE) agents traveled to Romeo, Michigan to search for the

defendant, whom they suspected of being a deported alien who had reentered the country illegally. 

At 8:30 that morning, the agents spotted the defendant driving his car and attempted to pull him

over, using their lights and sirens. The defendant did not stop; he headed for his residence. A

second agent joined the effort. The defendant parked his car and jumped out, running from the

agents on foot. The agents were wearing clothing marked with “Police” and “ICE” designations. 

The affidavit recites that one of the agents “contacted FELIX-Marqus at the front door of the

residence and attempted to place him in custody.” The defendant did not comply; he “pull[ed] his

arms away.” The defendant was able to enter his house with the agent in tow: “both FELIX-Marqus

and the officer fell into the house and onto the couch.” As additional agents entered the house, the

defendant still was noncompliant, refusing to put his hands behind him while he was on the couch. 

But he was arrested and transported to a federal facility. 

The defendant was charged in a two-count information with an immigration violation and

assaulting a federal agent. Count II of the information charges that on March 20, 2015, defendant

Guillermo Felix-Marqus

did forcibly resist and oppose officers of the Department of Homeland Security,

Immigrations and Customs Enforcement while they were engaged in the performance

of their official duties, and during such resistance and opposition, the defendant[’s]

actions resulted in physical contact with said officers, agents, and those others who

assisted the officers and agents, during the defendant’s apprehension and arrest.

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Information (citing 18 U.S.C. § 111(a)(1)). The defendant contends essentially that the information

purports to charge a felony offense of forcible resistance involving “physical contact,” where the

facts alleged and to be presented at trial support only a misdemeanor charge. The felony designation

in count II, he argues, should be dismissed. 

II.

Federal Rule of Criminal Procedure 12 states that a defendant may move before trial to

dismiss an information or any count of it that “fail[s] to state an offense.” Fed. R. Crim. P.

12(b)(3)(B)(v). However, a motion under this rule is appropriate only if “the court can determine

[it] without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). 

“‘[A]n indictment [or information] sufficiently states an offense if it, first, contains the

elements of the offense charged and fairly informs a defendant of the charge against which he must

defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions

for the same offense.’” United States v. Anderson, 605 F.3d 404, 411 (6th Cir. 2010) (quoting

Hamling v. United States, 418 U.S. 87, 117 (1974)). Where the information “clearly track[s] the

language of the statute,” it sufficiently “contain[s] the elements of the offense.” Ibid. Where the

charging language includes “the relevant time period and the specific event that triggered the

charge,” the defendant will “accordingly be able to adequately plead an acquittal or conviction in

bar of any future prosecutions arising from the same offense,” and the second requirement under

Hamling will be met. Ibid. “[C]ourts evaluating motions to dismiss [an information for failure to

state an offense] do not evaluate the evidence upon which the [information] is based.” United States

v. Landham, 251 F.3d 1072, 1080 (6th Cir. 2001) (citing Costello v. United States, 350 U.S. 359,

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362-63 (1956); United States v. Powell, 823 F.2d 996, 999-1001 (6th Cir.1987); United States v.

Markey, 693 F.2d 594, 596 (6th Cir. 1982)).

Section 111 of Title 18 of the United States Code states:

Whoever [] forcibly assaults, resists, opposes, impedes, intimidates, or interferes with

any person designated in section 1114 of this title while engaged in or on account of

the performance of official duties . . . . shall, where the acts in violation of this

section constitute only simple assault, be fined under this title or imprisoned not

more than one year, or both, 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.

18 U.S.C. 111(a). The Sixth Circuit has explained that the statute creates, by its somewhat clumsy

terms, “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.” United

States v. Zabawa, 719 F.3d 555, 559 (6th Cir. 2013). 

In United States v. Gagnon, 553 F.3d 1021 (6th Cir. 2009), the court of appeals untangled

the language of the statute, discussed the elements of the various offenses defined thereunder, and

illuminated the distinction between a misdemeanor and a felony. The main question on appeal in

that case was whether a person could be convicted under the statute if the proofs did not establish

a common-law assault. After parsing the statute’s language, and in obedience to the command of

statutory construction to avoid “interpretations that render language superfluous,” id. at 1026

(quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992)), the court held that “simple

assault” as used in section 111(a) is a term of art that Congress intended to include not just an assault

at common law, but also the acts of “assault[ing], resist[ing], oppos[ing], imped[ing], intimidat[ing],

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or interfer[ing] with” a federal officer, id. at 1027. The court also read the statute as requiring proof

that a person committed one of the six prohibited acts “forcibly.” Ibid. 

The misdemeanor offense in section 111(a), the Gagnon court held, requires proof that the

defendant forcibly committed one of the six acts encompassed within the definition of “simple

assault,” “without the intent to cause physical contact or to commit a serious felony.” Ibid. In

reaching that conclusion, the court rejected the Ninth Circuit’s interpretation of the statute in United

States v. Chapman, 528 F.3d 1215, 1221 (9th Cir. 2008), which held that any conviction for either

the misdemeanor or felony offenses defined under 18 U.S.C. 111(a) requires proof that the defendant

committed some form of common law assault against a federal officer. To prove the eight-year

felony violation under section 111(a), the government must prove a “simple assault” plus “ forcible

physical contact or the intent to commit a serious felony.” Gagnon, 553 F.3d at 1027. Explaining

further, the court stated:

Contrary to the Ninth Circuit’s assertions, this reading would not make a felony out

of cases where a defendant unlawfully resisted a federal agent where “the physical

conduct is initiated by the arresting officer rather than the arrestee,” [Chapman, 528

F.3d at 1221], because, in those cases, the arrestee would not have “forcibly”

initiated the physical contact and would therefore instead be guilty of only a

misdemeanor “simple assault” under the statute. By contrast, if an arrestee resisted

or interfered with covered officials by pushing, punching, or headbutting them, for

example, he would be guilty of a felony . . . .

Ibid.

Here, the defendant argues that at most, the affidavit shows that if physical contact was

made, it was initiated by the arresting officers. But what the affidavit shows is beside the point. In

a motion to dismiss under Rule 12, the focus must be on “the pleadings,” that is, the “indictment [or]

the information.” Fed. R. Crim. P. 12(a). 

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The information in this case adequately charges a felony (with an eight-year maximum

sentence) violation of 18 U.S.C. § 111(a), because (1) it alleges all of the essential elements of that

offense: (a) forcible (b) resistance or opposition (c) against a federal officer in the performance of

his or her duties, (d) where the defendant intentionally caused physical contact with the officer; and

(2) it outlines the essential facts underlying the charge, alleged to have occurred on a specific date,

such that the defendant could raise an acquittal or conviction on the present charge as a doublejeopardy defense to a subsequent prosecution.

Contrary to the defendant’s reading of Gagnon and his reliance on Chapman (which Gagnon

criticized), felony charging under section 111(a) is not limited only to those cases in which the

defendant engaged in specific acts such as “pushing, punching, or headbutting” officers. As the

Sixth Circuit explained in Gagnon, the only essential elements that must be proven by the

government are “forcible performance of any of the six proscribed actions in § 111(a),” along with

“resulting physical contact from forcible (and thus intentional) action [by the defendant].” Gagnon,

553 F.3d at 1027. Here, the information alleges that the defendant “forcibly resist[ed] and oppose[d]

ICE officers while they were engaged in the performance of their official duties,” and it also charges

that “during such resistance and opposition, the defendant[’s] actions resulted in physical contact

with said officers.” The information adequately states that the physical contact that resulted was

caused intentionally by the defendant initiating forcible and intentional acts of resistance and

opposition. That language is sufficient under the statute to state a felony offense.

Based on his reading of officers’ reports supporting the complaint, the defendant contends

that the government will be unable to prove at trial that he in fact committed any intentional act of

forcible resistance that resulted in physical contact with officers, and that the officers’ reports

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disclosed by the government suggest that the only contact that occurred was initiated by them, not

the defendant. Those arguments would be well taken in support of a motion under Rule 29 at the

close of the government’s proofs at trial, but they do not present a proper basis either for pretrial

dismissal of Count II or for striking the language regarding “physical contact” from that count. 

United States v. Landham, 251 F.3d 1072, 1080 (6th Cir. 2001).

III.

Count II of the information adequately states a felony offense under 18 U.S.C. § 111(a).

Accordingly, it is ORDERED that the motion to dismiss Count II of the information [dkt.

#14] is DENIED.

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: August 6, 2015

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on August 6, 2015.

s/Susan Pinkowski 

SUSAN PINKOWSKI

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