*

The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District of

Tennessee, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0030p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHRISTIAN GAGNON,

Defendant-Appellant.

X

-

-

-

-

>

,

-

-

-

N

No. 07-2133

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 07-50199—George C. Steeh, District Judge.

Argued: December 9, 2008

Decided and Filed: January 29, 2009 

Before: MARTIN and McKEAGUE, Circuit Judges; COLLIER, Chief District Judge.*

_________________

COUNSEL

ARGUED: Joseph A. Niskar, Detroit, Michigan, for Appellant. Kevin M. Mulcahy,

ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

ON BRIEF: Joseph A. Niskar, Detroit, Michigan, for Appellant. Ross MacKenzie,

ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

_________________

OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. This case turns on the surprisingly

vexing determination of what distinguishes a “simple assault” from “all other cases”

under 18 U.S.C. § 111, which imposes punishment on anyone who “forcibly assaults,

resists, opposes, impedes, intimidates, or interferes with” certain federal officers and

1
No. 07-2133 United States v. Gagnon Page 2

employees. Defendant Christian Gagnon argues that his conviction was improper

because the magistrate judge did not find that he committed “assault” and instead only

found that he forcibly resisted, impeded, and interfered with an officer. But, because

§ 111 expressly prohibits more conduct than merely the commission of common-law

assault, we affirm.

I.

In June 2006, after a security guard at a marina in St. Clair Shores, Michigan

identified Christian Gagnon as possibly having immigration status problems, federal

Border Patrol Agents confronted him. Gagnon, a Canadian citizen, had been drinking –

he testified to having had at least “six beers,” “a cocktail,” and “another beer” – and he

did not have his immigration documents with him. He searched the boat cabin for his

passport and called his fiancée for help, but was unable to locate it. The agents,

concerned that he was improperly within the country, called their superior to request a

notice for Gagnon to appear before an immigration judge. While loud music played in

the background, one agent observed Gagnon “suddenly jump up” and testified later that

he had feared that Gagnon might attack. The agents tried to force Gagnon to sit down,

he resisted, and they handcuffed him. After a somewhat tumultuous back and forth, the

agents loaded Gagnon into the back of their Border Patrol vehicle. They asserted that

Gagnon made himself vomit by sticking his finger down his throat (Gagnon stated that

his stomach was upset from drinking alcohol), and the agents alleged that Gagnon spit

at them through the vehicle’s security screen between “five and ten times” while

continually yelling obscenities.

This encounter crescendoed the next day when one of the agents issued Gagnon

a citation notice charging him with a violation of 18 U.S.C. § 111. The parties agreed to

proceed with the matter as a Class B misdemeanor charge (and thus the government was

not required to file an information and there was no formal indictment), and Gagnon was

convicted of a misdemeanor following a bench trial before a magistrate judge. The

magistrate judge sentenced him to six months in prison given his Guidelines range. The

district court affirmed.
No. 07-2133 United States v. Gagnon Page 3

1

Section 111 provides: 

In general.– Whoever–

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any

[designated federal officer or employee] 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 [designated

federal officer or employee] 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 in all other cases, 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.

II.

Our jurisdiction can neither be waived nor assumed. A defendant may not appeal

directly from a magistrate’s judgment to the court of appeals, but rather must appeal to

the district court. 18 U.S.C. § 3402; FED.R.CRIM. P. 58(g)(2). And, although there is no

provision that expressly allows a defendant to appeal from a district court’s judgment

affirming a conviction by a magistrate, 18 U.S.C. § 1291 grants appellate courts the

authority to entertain appeals from “all final decisions of the district courts.” So this

language includes final district court adjudications of appeals from misdemeanor trials

by magistrate judges. See, e.g., United States v. Aslam, 936 F.2d 751, 754 (2d Cir. 1991).

Indeed, such appeals have routinely been allowed, see, e.g., United States v. Forcellati,

610 F.2d 25, 30 (1st Cir. 1979), and there is little reason to refuse Gagnon’s appeal for

prudential reasons because Gagnon appeals a conviction that resulted in jailtime and

criminal trials before magistrates ought to be encouraged.

III.

Before getting to the primary question in this appeal, we must first address a

structural point of first impression in this Circuit. Although 18 U.S.C. § 1111 appears to

set out a single offense with three levels of punishment to be imposed depending on the
No. 07-2133 United States v. Gagnon Page 4

finding of certain sentencing elements, the Supreme Court has instructed that statutes

with this type of structure in fact set forth separate crimes whose elements all must be

proven to a jury. In Jones v. United States, 526 U.S. 227, 252 (1999), the Court

construed the federal carjacking statute – which also begins with a general offense

provision and is followed by provisions defining levels of punishment based on varying

criteria – and held that it defines separate crimes and that the factors leading to higher

punishment must be considered elements of crimes and not sentencing enhancements.

Id. This construction was necessary to avoid constitutional problems that would arise if

elements of crimes were re-labeled “sentencing factors”: Congress may not circumvent

the constitutional requirement that elements of crimes must be submitted to a jury and

proven beyond a reasonable doubt by re-labeling them “sentencing enhancements.” Id.

Imagine the problems if Congress created a statute entitled “theft” that distinguished

between petty theft and violent burglaries on the basis of “sentencing enhancements” not

submitted to juries or proven beyond a reasonable doubt. 

In any event, Apprendi v. New Jersey, 530 U.S. 466 (2000) – which was decided

after Jones and held that “any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt” – makes it indisputable that § 111 too must be treated as creating three

separate crimes whose elements must all be submitted to a jury rather than as a single

crime with three separate punishments determined on the basis of sentencing factors

submitted to a judge. Those three crimes are: (1) “simple assault” (misdemeanor);

(2) violations of § 111 that either involve a deadly or dangerous weapon or result in

bodily injury (aggravated felony); or (3) “all other cases” (felony). 18 U.S.C. § 111(a)-

(b). Our sister courts of appeals are unanimous on this point. See, e.g., United States v.

Vallery, 437 F.3d 626, 630 (7th Cir. 2006); United States v. Ramirez, 233 F.3d 318, 321

(5th Cir. 2000) (overruled on other grounds by United States v. Cotton, 535 U.S. 625

(2002)).
No. 07-2133 United States v. Gagnon Page 5

2

Congress recently amended § 111(a) as a part of the Court Security Improvement Act of 2007,

effective January 7, 2008. See Pub. L. No. 110-177, § 208(b), 121 Stat. 2538 (2008). The amended version

of the statute is not before the Court in this case, and in any event the amendments do not directly resolve

the ambiguity at issue here.

IV.

So we turn to the primary question here: what is the difference between “simple

assault” and “all other cases” under 18 U.S.C. § 111? Section 111 – titled, “Assaulting,

resisting, or impeding certain officers or employees” – has two parts. The first prohibits

“forcibly assault[ing], resist[ing], oppos[ing], imped[ing], intimidat[ing], or interfer[ing]

with” certain active federal officers or employees and “forcibly assault[ing] or

intimidat[ing]” former officers or employees. 18 U.S.C. § 111(a)(1)-(2). The second part

sets out three levels of punishment for offenders: The first provides that anyone who

violates § 111 and uses a deadly or dangerous weapon or inflicts bodily injury is guilty

of a felony punishable by up to twenty years in jail; id. at § 111(b); the second provides

that anyone who commits “only simple assault” is guilty of a misdemeanor punishable

by up to a year in prison and a possible fine, id. at § 111(a); and the third provides that

“in all other cases,” a defendant is guilty of a felony punishable by up to eight years in

prison and a possible fine. Id.

2

The difficulty concerns how to distinguish between cases involving “only simple

assault” from “all other cases.” There is no obvious answer. The statute does not define

“simple assault” and neither is it defined elsewhere in the U.S. Code. And, while

§ 111(a)(1) prohibits six different actions (forcibly assaulting, resisting, opposing,

impeding, intimidating, or interfering, with assault being but one), the punishment level

clauses, by contrast, distinguish between misdemeanors and felonies solely in terms of

“assault.” Before turning to the government’s interpretation distinguishing “simple

assaults” from “all other cases,” we begin with Gagnon’s. 

A.

At the close of the bench trial, the magistrate judge stated:

The statute proscribes the forcible assault, resisting, opposing, impeding,

intimidating or interfering with any person which [sic] engaged in or on
No. 07-2133 United States v. Gagnon Page 6

3

Although Gagnon heavily relies on Hathaway in his brief – and that case counsels in favor of

his view – the case that most squarely supports his claim is the Ninth Circuit’s opinion in United States

v. Chapman, 528 F.3d 1215 (9th Cir. 2008).

account of the performance of official duties. The official duties element

is conceded based upon the testimony, and in view of the defendant’s

admitted consumption of substantial alcohol, I am satisfied that – that the

element of forcible resistance, forcible impeding, forcible interference is

satisfied in this case. In view of that finding, I will find that the defendant

is guilty of the offense charged and enter a finding to that effect. 

J.A. 102 (emphasis added). Gagnon argues that these findings were insufficient to

support his conviction. Although styled as a sufficiency-of-the-evidence challenge, the

real question here concerns how this Court should interpret 18 U.S.C. § 111. This Court

“review[s] questions of statutory interpretation de novo.” United States v. Parrett, 530

F.3d 422, 429 (6th Cir. 2008).

In reliance on the Tenth Circuit’s decision in United States v. Hathaway, 318

F.3d 1001 (10th Cir. 2003), Gagnon argues that § 111 requires a finding of actual

common-law “assault” to sustain any conviction under § 111.3

 In Hathaway, the Tenth

Circuit vacated a felony conviction under § 111 because the government had not alleged

or proven the elements of “assault.” Specifically, the Hathaway court reasoned first that

at common law “simple assault” was defined as “either a willful attempt to inflict injury

upon the person of another, or by 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.” Id. at 1007. Second, the Hathaway court observed that when

Congress amended § 111 in 1994 to add the phrase “simple assault” and thus create

§ 111’s misdemeanor offense level (previously all violations of § 111 were felonies), see

Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, it

apparently borrowed the phrase from 18 U.S.C. § 113, which prohibits assaults within

maritime and territorial jurisdiction. Because § 113 is limited only to “assaults” (and

does not list any of the other five actions listed in § 111) the Tenth Circuit reasoned that

§ 111 too must be limited to prohibiting only common-law assault and nothing else.

Hathaway, 318 F.3d at 1008-09. 
No. 07-2133 United States v. Gagnon Page 7

4

Congress’s recent amendment to § 111 approaches this rationale: Assaults are now treated as

felonies if they “involve physical contact . . . or the intent to commit another felony.” Pub. L. No. 110-77.

Nevertheless, Congress’s amendment does little to clarify the primary question in this appeal: whether

§ 111 is limited only to assaults or includes all the actions spelled out in § 111(a). 

So Gagnon’s argument is that Hathaway supports his view that the government

must prove that the defendant committed an assault and either that there was physical

contact or the defendant had the intent to commit murder or another serious felony to

sustain a felony conviction under § 111.4 And the Ninth Circuit has explicitly endorsed

this view. United States v. Chapman, 528 F.3d 1215, 1219 (9th Cir. 2008) (concluding

that its construction of § 111 “leaves no room for a conviction that does not involve at

least some form of assault”). This has obvious appeal for Gagnon: under this reading,

“while a defendant could be charged with resisting, opposing, impeding, intimidating,

or interfering, he could not be convicted unless his conduct also amounted to an assault.”

Chapman, 528 F.3d at 1219. Here, the magistrate judge did not find that Gagnon had

committed forcible assault against the border patrol officers but instead found that he

merely forcibly resisted, impeded, and interfered with them. 

But the fatal problem with this reading is that it makes a great deal of what § 111

does say entirely meaningless, which flies in the face of the Supreme Court’s repeated

instruction that “courts should disfavor interpretations that render language superfluous.”

Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253 (1992). Gagnon’s reading

disregards five of the six actions Congress specifically delineated and instead collapses

the inquiry into a single one: was an assault committed? However appealing this

approach might be from a policy perspective or as an easy way to apply a rather

convoluted statute, it is nevertheless impermissible as offensive to the statute’s text.

Congress left much open with § 111 – particularly when it carved into it a murky

distinction between “simple assaults” and “all other cases” – but that is no excuse to

ignore what it plainly does say.

Congress’s drafting makes clear that § 111’s purpose is to protect federal officers

and certain employees from a broader range of harmful conduct than just common-law

assault. If Congress meant only assault it could have said only assault, which is all it said
No. 07-2133 United States v. Gagnon Page 8

5

We can also dispose of a hyper-literal approach to § 111. This reading suggests that when

Congress amended § 111 to say “simple assault,” it meant something like “simpl[y] assault,” in that if a

defendant committed only assault, and nothing more, then he was guilty of a misdemeanor, but if he

committed any of the other five prohibited actions (either alone or in conjunction with an assault) then he

was guilty of a felony under the “all other cases” catchall. This reading leads to absurd results: a defendant

who assaulted a border patrol officer would be guilty of a misdemeanor (so long as he did not use a deadly

weapon or cause bodily injury), while one who passively resisted or impeded such an officer – but did not

in any way threaten or cause an apprehension or fear of injury – would be guilty of a felony. Indeed, the

incentive would be for suspects to assault agents rather than merely interfere with them, as the law would

punish them more severely for their prudence. That cannot be what Congress intended.

6

These cases, relied on by the government in its brief, did not precisely address the question

before us – whether a defendant is guilty of a misdemeanor or nothing at all – and instead addressed a

related but slightly distinct one: what actions constitute a felony conviction versus a misdemeanor under

§ 111(a)? Though not directly controlling, we believe that their rationales support our reading and we

therefore disagree with the Ninth Circuit’s view, despite it being the only circuit to have directly addressed

this precise issue. Compare Chapman, 528 F.3d at 1219 (“[W]hile a defendant could be charged with

resisting, opposing, impeding, intimidating, or interfering, he could not be convicted unless his conduct

also amounted to an assault.”), with Vallery, 437 F.3d at 633 (“Moreover, in addition to the plain language

of the statute, case law supports Vallery by stating or implying that the simple assault provision applies

to the entirety of § 111(a).”) (emphasis added); Yates, 304 F.3d 818, 822 (8th Cir. 2002) (“We hold that,

in the context of § 111, the definition of simple assault is conduct in violation of § 111(a), which does not

[] involve actual physical contact, a dangerous weapon, serious bodily injury, or the intent to commit

murder or another serious felony.”) (emphasis added); Ramirez, 233 F.3d at 322 (holding statutory

definition of “all other cases” assault to be “any physical contact which by which a person ‘forcibly

assaults, resists, impedes, intimidates, or interferes with’” a covered officer) (emphasis in original). 

in 18 U.S.C. § 113. Instead, Congress chose to be specific: it named the statute

“Assaulting, resisting, or impeding certain officers or employees,” and it took the care

to include six prohibited actions for active officials in subsection § 111(a)(1) –

assaulting, resisting, opposing, impeding, intimidating, and interfering with – and then

to cull those six down to two in § 111(a)(2), where it prohibited only forcibly assaulting

and intimidating former federal officials. Congress would not have gone to this trouble

if all it meant was assault alone. So that reading is unsatisfactory.5

B.

The better reading of the statute is one we think indicated by the majority of our

sister circuits that have addressed § 111 in detail. See, e.g., United States v. Hazlewood,

526 F.3d 862 (5th Cir. 2008); Vallery, 437 F.3d at 630.6

 Like the Tenth Circuit’s

approach, the difference between “simple assault” and “all other cases” is determined

in light of the common law definition quoted earlier, but this reading also recognizes that

when Congress amended § 111 in 1994 it used the phrase “simple assault” as a term of

art to incorporate the actions proscribed in § 111(a)(1) and § 111(a)(2). It did so through
No. 07-2133 United States v. Gagnon Page 9

the common-law lens of “simple assault” as excluding cases involving forcible physical

contact or the intent to commit a serious felony. 

In other words, the phrase “simple assault” differs from “all other cases” in that

“simple assaults” involve the commission of any of the prohibited actions listed in

§ 111(a)(1) and § 111(a)(2), while “all other cases” covers the commission of these same

violations plus the intent to commit a felony or resulting physical contact from forcible

(and thus intentional) action. See United States v. Kimes, 246 F.3d 800, 808-09 (6th Cir.

2001) (holding that “forcible” applies to each of the prohibited actions in § 111 and

further that intoxication is not a defense because § 111 creates “a general intent crime

as to which evidence of diminished capacity is not admissible”). And “simple assault”

becomes a term of art that includes the forcible performance of any of the six proscribed

actions in § 111(a) without the intent to cause physical contact or to commit a serious

felony. 

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 under the “all other cases” clause. 

C.

Having concluded that misdemeanor “simple assaults” under § 111 refer to cases

where a defendant has forcibly performed one of the prohibited actions of § 111(a)

without forcibly or intentionally creating physical conduct himself and without the intent

to commit a serious felony, this case becomes straightforward. The magistrate judge

found that Gagnon forcibly resisted, impeded, and interfered with the border patrol

agents who attempted to check on his immigration status and detain him. The record

fully supports those conclusions on the basis of Gagnon’s admitted drunkenness and the
No. 07-2133 United States v. Gagnon Page 10

7

This construction of the statute also avoids the necessity of deciding the timeless question

whether spitting a “lugie” towards someone, by itself, constitutes an “assault.” See Br. for United States

at 14 (“Although Gagnon’s spittle may not have actually touched [the agent], it is clear . . . that Gagnon

was attempting quite seriously to hit him. Given the size of the holes in the security screen a well-aimed

lugie could have done the trick. Clearly, this conduct constituted a simple assault.”) (citations to the record

omitted). We also leave aside for another day the less timeless but no less profound question whether –

assuming spitting alone could constitute an assault – a successful spit (one that hit its intended target)

creates sufficient “physical contact” under our construction of § 111 to elevate lugie-hurling from

misdemeanor “simple assault” into being a felony under the “all other cases” clause. 

magistrate judge’s crediting the government’s assertions that Gagnon acted defiantly

while being detained and taken away.7 We cannot say that those determinations were

error, and they are all that the statute requires.

V.

For the above reasons, we affirm Gagnon’s conviction and sentence.