[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-12333

Non-Argument Calendar

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D.C. Docket No. 1:12-cr-00245-TWT-GGB-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

JEREE E. GREY, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

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(March 12, 2014)

Before HULL, MARCUS, and EDMONDSON, Circuit Judges.

PER CURIAM: 

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Jeree Grey appeals his conviction and sentence after a jury convicted him of 

forcible assault of a federal officer, in violation of 18 U.S.C. § 111(a)(1). Grey 

committed the offense while serving a 66-month sentence for a 2008 conviction in

the Southern District of Florida for conspiring to distribute five kilograms or more 

of cocaine. In this case, the evidence at trial showed that in 2012, as inmates were 

on their way to their work assignments, Grey aggressively moved out of line 

toward the prison warden. Grey repeatedly punched the warden, causing the 

warden to fall to the ground, where Grey continued to strike the warden until 

prison guards restrained him. 

Grey’s theory at trial was that he did not intend to inflict injury, as he only 

planned to do something outrageous that would get him placed in special housing; 

and he thought the other prison guards would stop him before he made contact 

with the warden. The government requested a jury charge on forcible assault 

consistent with the Eleventh Circuit Pattern Jury Instructions, Offense Instruction 

1.1. The government also requested that the following language supplement the 

pattern instruction, “[t]he law further provides that simple assault, which means a 

willful attempt to inflict some injury, coupled with physical contact is sufficient to 

constitute ‘forcible assault.’” Grey objected that the supplemental language 

improperly fused together the forcible-assault and physical-contact elements of the 

statute. The district court ultimately charged the jury that: 

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The Defendant can be found guilty of this crime only if all of the 

following facts are proved beyond a reasonable doubt: One, the 

Defendant forcibly assaulted the person described in the indictment; 

and, two, the person assaulted was a federal officer or employee 

performing an official duty.

A forcible assault is an intentional threat or attempt to cause serious 

bodily injury when the ability to do so is apparent and immediate. It 

includes any intentional display of force that would cause a reasonable 

person to expect immediate and serious bodily harm or death 

regardless of whether the act is carried out or the person injured. The 

law further provides that a willful attempt to inflict some injury 

coupled with physical contact is sufficient to constitute a forcible 

assault. Since minimal contact is sufficient to violate Section 

111(a)(1), the physical contact need not have resulted in actual bodily 

injury. 

The jury found Grey guilty, and the district court sentenced him to 87 

months’ imprisonment to run consecutively to his prior federal sentence. 

The appeal presents two issues:

1. Whether the district court misstated the law in its jury instruction on 

forcible assault.

2. Whether collateral estoppel barred the district court from assigning 

criminal history points to Grey’s prior conviction for bank fraud.

We see no reversible error. 

I.

We review whether the district court misstated the law in a jury instruction 

de novo. United States v. Joseph, 709 F.3d 1082, 1093 (11th Cir. 2013). We 

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review de novo the district court’s interpretation of a statute. United States v. 

Dodge, 597 F.3d 1347, 1350 (11th Cir. 2010) (en banc). “The district court has 

broad discretion in formulating its charge as long as the charge accurately reflects 

the law and the facts.” United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir.

2009). “When the jury instructions, taken together, accurately express the law 

applicable to the case without confusing or prejudicing the jury, there is no reason 

for reversal even though isolated clauses may, in fact, be confusing, technically 

imperfect, or otherwise subject to criticism.” United States v. Beasley, 72 F.3d 

1518, 1525 (11th Cir. 1996). 

The Supreme Court has held that the omission of an element from the jury 

instructions is subject to harmless error analysis. Neder v. United States, 527 U.S. 

1, 15, 119 S.Ct. 1827, 1837, 144 L.Ed.2d 35 (1999). Such an error is harmless 

when it appears “beyond a reasonable doubt that the error complained of did not 

contribute to the verdict obtained,” namely, “where a reviewing court concludes 

beyond a reasonable doubt that the omitted element was uncontested and supported 

by overwhelming evidence, such that the jury verdict would have been the same 

absent the error.” Id. at 15-17, 119 S.Ct. at 1837 (quotation omitted).

Statutory interpretation begins with the “the language of the statute itself.” 

United States v. Aldrich, 566 F.3d 976, 978 (11th Cir. 2009). An important canon 

of statutory interpretation is that courts shall presume that a statute means what it 

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says and says what it means. Id. “[S]tatutes should be construed so that no clause, 

sentence, or word shall be superfluous, void, or insignificant.” Id. Overlapping 

statutory provisions are not necessarily wholly superfluous. Cf. Conn. Nat’l. Bank 

v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) 

(describing that “[r]edundancies across statutes are not unusual events in 

drafting”); see also Piazza v. Nueterra Healthcare Physical Therapy (In re Piazza), 

719 F.3d 1253, 1266-67 (11th Cir. 2013) (applying Conn. Nat’l Bank to a 

superfluity argument regarding two subsections of the same statute). 

The current version of 18 U.S.C. § 111-- under which Grey was convicted --

uses these words:

(a) In general. -- Whoever --

(1)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; 

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 

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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 (emphasis added). 

Section 111 of Title 18 of the United States Code establishes three levels of 

forcible assault: (1) simple assault, defined as “a willful attempt to inflict injury 

upon the person of another, or . . . a threat to inflict injury upon the person of 

another which, when coupled with an apparent present ability, causes a reasonable 

apprehension of immediate bodily harm”; (2) “all other cases” of forcible assault 

that involve physical contact or the intent to commit another felony; and (3) “all 

other cases” of forcible assault where the defendant uses a deadly or dangerous 

weapon or inflicts bodily injury.1

 United States v. Gutierrez, No. 12-13809, 

manuscript op. at 5 (11th Cir. Jan. 16, 2014) (citing Martinez, 486 F.3d 1239, 

1244-45 (analyzing a prior version of 18 U.S.C. § 111)) (quotation omitted). In 

United States v. Siler, we stressed that 18 U.S.C. § 111 creates three separate 

crimes. 734 F.3d 1290, 1296 (11th Cir. 2013). “Each [crime] has one or more 

 1 The use of the “all other cases” language tracks the pre-2008 version of 18 

U.S.C. § 111, which provided that a person who forcibly assaults, resists, opposes, 

impedes, intimidates, or interferes with a federal officer engaged in his official 

duties shall be fined or imprisoned not more than one year “where the acts . . . 

constitute only simple assault,” or fined or imprisoned not more than eight years 

“in all other cases.” See 18 U.S.C. § 111 (2002); see Court Security Improvement 

Act of 2007 (“CSIA”), Pub. L. No. 110-177, § 208(b), 121 Stat. 2534 (2008) 

(describing changes to § 111). 

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elements of the preceding category or categories, but adds an element or elements 

upon which is conditioned a steeply increased penalty. Each element has to be 

charged and proven beyond a reasonable doubt in the case of a jury trial.” Id. 

In Martinez, we analyzed the prior version of 18 U.S.C. § 111, which 

provided for two levels of forcible assault: (1) a misdemeanor offense if the 

conduct constituted simple assault, or (2) a felony offense punishable by up to 

three years2 in prison “in all other cases.” See 486 F.3d at 1244. The defendant in 

Martinez was charged under § 111(a) with an offense involving physical contact. 

Id. at 1246. We decided that such an offense fell within the “all other cases” of 

forcible assault rather than the simple assault category. Id. In doing so, we

specifically rejected the defendant’s argument that the second category of forcible 

assault always required a threat to inflict serious bodily injury; and we noted that 

an assault with physical contact was sufficient to constitute forcible assault under 

the statute. Id. So, we upheld the district court’s jury instruction, which had 

provided that a forcible assault is “an assault which results in physical contact 

which does not involve a deadly weapon or bodily harm.” Id.

We recently applied Martinez in addressing the sufficiency of jury 

instructions given in a trial where the defendant was charged with forcibly 

 2 In 2002, an amendment increased the maximum punishment from three 

years to eight years. Siler, 734 F.3d at 1294 n. 3. The version of the statute

analyzed in Martinez involved the three-year penalty. Martinez, 486 F.3d at 1244-

45.

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assaulting a federal officer under the current version of 18 U.S.C. § 111(a) and (b). 

See Gutierrez, manuscript op. at 4-5, 11-16. In Gutierrez, the defendant 

challenged the district court’s failure to instruct the jury on the lesser-included 

offense of simple assault and its failure to define forcible assault for the jury. Id. at 

11-16. The Gutierrez defendant did not contest that he had made physical contact 

with the federal officer. Id. at 12. We wrote that “[a]n assault is not classifiable as 

a ‘simple assault’ if the assailant had physical contact with the victim.” Id. at 12. 

Moreover, to find that a defendant has committed forcible assault, the jury need not 

find intent to inflict serious bodily injury where physical contact has been made. 

Id. at 13. We further explained that although forcible assault includes any willful 

threat or attempt to inflict bodily injury with the apparent or present ability to do 

so, “this is not . . . the only species of forcible assault,” as “an assault with physical 

contact constitutes forcible assault.” Id. at 15 (citing Martinez, 486 F.3d at 1246). 

Here, the district court did not misstate the law in its instruction on forcible 

assault. The district court’s pattern charge on the general definition of forcible 

assault -- which provided that a “forcible assault is an intentional threat or attempt 

to cause serious bodily injury when the ability to do so is apparent and immediate. 

It includes any intentional display of force that would cause a reasonable person to 

expect immediate and serious bodily harm or death regardless of whether the act is 

carried out or the person injured” -- was a correct statement of the law. See United 

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States v. Fallen, 256 F.3d 1082, 1090 (11th Cir. 2001). Moreover, the district 

court’s addition of the language from Martinez, which further defined forcible 

assault as intent to inflict some injury coupled with physical contact, was an 

accurate statement of the law fitting the evidence presented in Grey’s case. See 

Gutierrez, manuscript op. at 15; Martinez, 486 F.3d at 1245-46. Grey’s contention 

that forcible assault requires intent to inflict serious bodily harm is mistaken, as we 

have expressly stated (even after the 2008 statutory revision) that the jury is not 

required to find “intent to inflict serious bodily injury where physical contact has 

been made.” See Gutierrez, manuscript op. at 13. 

Grey’s argument that the district court’s definition of forcible assault renders 

the physical contact element superfluous is incorrect: forcible assault involving 

physical contact is only one way to establish forcible assault, but not the only way 

under the statute. See id. at 15; Martinez, 486 F.3d at 1246. While this definition 

creates an overlap between the acts listed in subsection (a) and the physical contact 

element, it does not render the physical contact element wholly superfluous 

because one can still be found guilty of forcible assault without physical contact. 

See 18 U.S.C. § 111(a); Cf. Conn. Nat’l Bank, 503 U.S. at 253, 112 S.Ct. at 1149. 

To the extent Grey argues that, in his case, the district court erred by not 

instructing the jury that physical contact is a separate element that must be proved 

beyond a reasonable doubt, the district court’s supposed error was harmless. 

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Although the district court mentioned physical contact in its definition of forcible 

assault, it only instructed the jury distinctly that, to find Grey guilty, the following 

facts needed to be proven beyond a reasonable doubt: (1) Grey forcibly assaulted 

the person in the indictment; and (2) the person assaulted was a federal officer 

performing his official duties. This charge was arguably erroneous because the 

district court never instructed the jury that it was required to find physical contact.3

 

For background, see Siler, 734 F.3d at 1294-96. Still, any error was harmless, 

because the evidence submitted at trial showing that Grey had made physical 

contact with the warden was overwhelming and undisputed. See Neder, 527 U.S. 

at 16-17, 119 S.Ct. at 1837. Moreover, Grey’s lawyer conceded during closing 

argument -- and on appeal -- that Grey had punched the warden and that he had 

made physical contact. Therefore, the district court’s failure to instruct on the 

separate element of physical contact was harmless beyond a reasonable doubt: the 

physical-contact element was uncontested and supported by overwhelming 

evidence, such that the jury verdict would have been the same absent the error. See 

Neder, 527 U.S. at 17, 119 S.Ct. at 1837. We affirm Grey’s conviction under 18 

U.S.C. § 111(a)(1). 

 3 Although neither Siler nor Gutierrez expressly states that physical contact 

is an element that must be charged and proven, physical contact is an element that 

must be found beyond a reasonable doubt under Apprendi v. New Jersey, because it 

is a fact that raises the statutory maximum. See Apprendi, 530 U.S. 466, 490, 120 

S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000).

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II.

About issue preclusion, a district court’s ruling on whether collateral 

estoppel and so on apply to an issue is a question of law that we review de novo. 

United States v. Shenberg, 89 F.3d 1461, 1478 (11th Cir. 1996). The doctrine of 

collateral estoppel applies to criminal proceedings through the Fifth Amendment’s 

guarantee against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 

1189, 1194-95, 25 L.Ed.2d 469 (1970). “Under the collateral estoppel doctrine, 

when an issue of ultimate fact has once been determined by a valid and final 

judgment, that issue cannot again be litigated between the same parties in any 

future lawsuit.” United States v. Valdiviez-Garza, 669 F.3d 1199, 1201 (11th Cir. 

2012) (quotation omitted) (emphasis added). To invoke collateral estoppel

successfully, the party must show: “(1) that the issue in question was actually 

raised and litigated in the prior proceeding; (2) that the determination was a critical

and necessary part of the final judgment in the earlier litigation; and (3) that the 

issue in the later proceeding is the same as that involved in the prior action.” 

United States v. Carter, 60 F.3d 1532, 1535 (11th Cir. 1995) (emphasis in 

original). 

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Here, collateral estoppel did not bar the district court from assigning 

criminal history points to Grey’s 2002 conviction for bank fraud. Grey argues that 

collateral estoppel applies because the earlier sentencing court in his 2008 

proceedings determined that his 2002 bank fraud conviction was related to his 

2002 forgery conviction. The only evidence Grey submitted in support of this 

argument was his 2008 presentence investigation report (“2008 PSI”): not a 

judgment. 

The 2008 PSI assigned one criminal history point to Grey’s 2002 forgery 

conviction, zero criminal history points to Grey’s 2002 bank fraud conviction 

citing U.S.S.G. § 4A1.2(a)(2), and one criminal history point to Grey’s 2002 theft 

of property conviction. The 2008 PSI also indicated that Grey’s 2002 bank fraud 

conviction involved stolen checks that were used to purchase motorcycles. 

Furthermore, the 2002 theft of property conviction was for stealing motorcycles 

and involved the victims and offense related to Grey’s 2002 bank fraud conviction. 

On the other hand, the PSI prepared for the instant proceedings (“2012 PSI”) 

assigned two criminal history points to Grey’s 2002 bank fraud conviction, one 

criminal history point for his 2002 forgery conviction, and zero points to his 2002 

theft of property conviction. 

Collateral estoppel does not apply because the 2008 PSI does not show --

cannot show, by itself -- that the relatedness of Grey’s 2002 convictions for forgery 

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and bank fraud was determined by a valid and final judgment. See ValdiviezGarza, 669 F.3d at 1201. A district court is not bound by the recommendations in 

the PSI. See Fed.R.Crim.P. 32(f), (i). Thus, collateral estoppel did not prevent the 

district court from assigning criminal history points to Grey’s bank fraud 

conviction.

AFFIRMED.

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