FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 17, 2007

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-13429

Non-Argument Calendar

________________________

D. C. Docket No. 05-20877-CR-KMM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

OSCAR MARTINEZ, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(May 17, 2007)

Before BIRCH, DUBINA and HULL, Circuit Judges.

PER CURIAM:
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Defendant Oscar Martinez appeals his conviction for forcibly assaulting a

federal officer, in violation of 18 U.S.C. § 111(a)(1). Martinez also appeals the

restitution order in his sentence. After review, we affirm.

I. BACKGROUND

Defendant Martinez is a prisoner at the Federal Detention Center (“FDC”) in

Miami, Florida. A grand jury indicted Martinez for forcibly assaulting a

correctional officer at the FDC by striking the officer’s face and body with a liquid

that was or appeared to be urine, in violation of 18 U.S.C. § 111(a)(1).

A. Trial

At trial, the government called Officer Jorge Giraldo, an FDC Miami

corrections officer. Giraldo described the cells in the Special Handling Unit

(“SHU”), which had a door with a window and a food slot wide enough to put

hands through. Giraldo testified that, on October 25, 2002, he and Officer Daniel

Parodi were bringing linens to the SHU cells when Defendant Martinez, who was

alone in his cell, requested a towel. As Giraldo turned to get the towel, he heard a

commotion and Defendant Martinez yelling, “I got you motherfucker.” Giraldo

saw Martinez standing with his hands outside the food slot, spraying a liquid all

over Parodi. The liquid was in a bottle of VO5. 

Giraldo pushed Martinez’s hands back into the cell and closed the food slot. 
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A small amount of the liquid also got on Giraldo’s shirt. Giraldo thought the liquid

was urine because of its smell and because he, after closing the food slot, saw

Martinez urinate into another bottle and say, “I got more for you.” After the

incident, Defendant Martinez apologized to Giraldo for getting urine on him,

stating that the urine was not meant for him. Apparently, the urine was meant for

only Parodi, who was sprayed first.

On cross-examination, Giraldo stated that all areas of the SHU were within

observation of cameras, which were movable. However, Giraldo did not know if

the cameras were turned on or whether, on the date of the incident, they were

facing the cell doors. Giraldo admitted that he did not know whether the incident

had been videotaped.

The government also called Officer Parodi to testify. According to Parodi,

Martinez was angry with him on the day of the incident because Martinez blamed

Parodi for losing his position as an orderly, which had given Martinez special

privileges. Parodi asked Giraldo to assist him with the linen exchange at

Martinez’s cell because he knew Martinez was angry with him and Parodi did not

want problems. As Parodi and Giraldo began to exchange Martinez’s linens,

Defendant Martinez squeezed the liquid contents of a bottle at Parodi. The liquid,

which smelled like urine, covered Parodi’s entire chest and got in his mouth, nose
4

and eyes. 

After he sprayed Parodi, Defendant Martinez laughed and said, “I finally got

you, motherfucker.” Martinez then said, “I got more for you, come on in.” Parodi

saw three bottles of what appeared to be urine in Martinez’s cell.

Parodi washed his face, eyes, mouth and chest and went to the FDC Miami

doctor. Parodi explained that he was concerned because he did not know if

Martinez had a communicable disease. After Parodi was evaluated by medical

staff at FDC Miami, he went to a hospital to have a blood check because he did not

know Martinez’s medical history. Parodi has not experienced any health problems

as a result of the incident.

On cross-examination, Parodi testified that cameras were positioned to cover

all areas of the SHU, except inside the cells. However, Parodi was not sure

whether the cameras were always on or if they were supposed to be on. When

asked if an incident such as the one at issue could be on videotape, Parodi

responded, “I believe so.” Parodi did not know if the incident had been videotaped

or if the cameras were connected to a video recording device. The government

rested, and Defendant Martinez presented no witnesses. 

B. Closing Arguments

Prior to closing arguments, Defendant Martinez contended that he should be
Offense Instruction 1.1 of the Eleventh Circuit Pattern Jury Instructions (Criminal) 1

provides that a defendant can be found guilty under § 111(a)(1) if the following facts are proven

beyond a reasonable doubt: (1) “[t]hat the Defendant ‘forcibly assaulted’ the person described in

the indictment, as that term is hereinafter defined”; (2) “[t]hat the person assaulted was a Federal

officer . . . then engaged in the performance of an official duty, as charged”; and (3) “[t]hat the

Defendant acted knowingly and willfully.” Offense Instruction 1.1 further defines “forcible

assault” in full as “any willful threat or attempt to inflict serious bodily injury upon someone

else, when coupled with an apparent present ability to do so, and includes any intentional display

of force that would give a reasonable person cause to expect immediate and serious bodily harm

or death even though the threat or attempt is not actually carried out and the victim is not

actually injured.”

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able to argue that the government had failed to produce a videotape of the incident. 

The district court ruled that Martinez could not make this argument in closing

because there was no evidence that the cameras in the SHU could record or were

merely for monitoring, or that the cameras had in fact recorded the incident.

C. Jury Instructions

Prior to trial, the government filed a motion requesting that the district court

modify the Eleventh Circuit pattern jury instruction’s definition of forcible assault,

which addresses cases involving threats or attempts but not any actual physical

contact. The government requested that “forcible assault” be defined as “an 1

assault which results in physical contact, but which does not involve a deadly

weapon or bodily harm.”

The government also argued that, because § 111 is a general intent statute,

the pattern jury instruction’s specific intent definition of “willfully” should not
6

apply. Instead, the government requested that the instruction be modified to state

that the government needed to prove that “the act was done voluntarily and

intentionally and not because of mistake or accident.” 

At the close of the evidence, the district court granted the government’s

requests over Defendant Martinez’s objections. After closing arguments, the

district court instructed the jurors as the government requested, as follows:

Title 18, United States Code, Section 111, makes it a federal

crime or offense for anybody to forcibly assault a federal officer while

the officer is engaged in the performance of official duties.

You are instructed that a correctional officer is one of the

federal officers referred to in that law. A defendant can be found

guilty of that offense of assaulting a federal officer only if all the

following facts are proved beyond a reasonable doubt:

First, that the defendant forcibly assaulted the person described

in the indictment as that term is hereafter defined;

Second, that the person assaulted was a federal officer, as

described above, then engaged in the performance of an official duty

as charged;

And third, that the defendant acted knowingly and willfully.

The term forcible assault means an assault which results in

physical contact which does not involve a deadly weapon or bodily

harm.

. . . .

The phrase “knowingly and willfully,” as that phrase is used in

the indictment or in these instructions, means that the act was done

voluntarily and intentionally, and not because of mistake or accident.

(Emphasis added). Martinez renewed his objections to the jury instructions. The

district court again overruled his objections. The jury found Martinez guilty.

D. Sentencing
We review the legal correctness of a jury instruction de novo. United States v. Prather,

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205 F.3d 1265, 1270 (11th Cir. 2000). District courts have broad discretion in formulating jury

instructions, so long as the charge as a whole accurately reflects the law and the facts. Id. We

will not reverse a conviction on the basis of a jury charge unless “the issues of law were

presented inaccurately, or the charge improperly guided the jury in such a substantial way as to

violate due process.” Id. (quotation marks and citation omitted).

7

According to the presentence investigation report (“PSI”), Parodi provided

medical bills showing $1,801.63 in losses. Parodi’s losses resulted from visits to

his physician and the emergency room and lab work for testing of diseases that he

could have contracted from Defendant Martinez’s actions. The PSI recommended

that Martinez pay $1,801.63 in restitution.

At sentencing, Martinez objected, arguing that he should not have to pay for

Parodi’s measures to ensure that he was not injured. The district court ordered

Martinez to pay $1,801.63 in restitution. The district court sentenced Martinez to

36 months’ imprisonment, to be served consecutive to the sentence Martinez is

currently serving, and one year of supervised release. Martinez filed this appeal.

II. DISCUSSION

A. Jury Instructions

Defendant Martinez argues that the district court erred in giving the

government’s proposed jury instructions on the elements of the offense.2

Under 18 U.S.C. § 111(a), a person commits forcible assault if that person

forcibly assaults, resists, opposes, impedes, intimidates or interferes with a federal
On November 2, 2002, the maximum penalty for “all other cases” of assault was 3

increased to eight years’ imprisonment, and the maximum penalty for assaults involving the use

of a deadly or dangerous weapon was increased to twenty years’ imprisonment. Federal

Judiciary Protection Act of 2002, Pub. L. No. 107-273, § 11008(b), 116 Stat. 1758, 1818 (2002).

8

officer in the performance of his official duties. Section 111 provides for different

penalties depending on the severity of the offenses, as follows:

(a) In general -- Whoever –

(1) forcibly assaults, resists, opposes, impedes, intimidates, or

interferes with any person designated [as a federal officer]

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 three years, or both.

(b) Enhanced penalty. -- 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 ten years.

18 U.S.C. § 111(a)-(b) (2002). In sum, § 111(a) establishes these categories of 3

forcible assault, each with its own penalty: (1) “simple assault,” punishable by not

more than a year of imprisonment; (2) “all other cases” of forcible assault, which

are punishable by not more than three years’ imprisonment; and (3) “all other

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

or inflicts bodily injury, which are punishable by not more than ten years’
Most circuits view § 111 as creating three categories of forcible assault. See, e.g.,

4

United States v. Hathaway, 318 F.3d 1001, 1008 (10th Cir. 2003); United States v. Campbell,

259 F.3d 293, 296 (4th Cir. 2001); United States v. McCulligan, 256 F.3d 97, 102 (3d Cir.

2001); United States v. Ramirez, 233 F.3d 318, 321 (5th Cir. 2000), overruled on other grounds

by United States v. Longoria, 298 F.3d 367, 372 & n.6 (5th Cir. 2000); United States v.

Chestaro, 197 F.3d 600, 606 (2d Cir. 1999). One circuit, however, notes that “the conduct

prescribed by § 111(b) does not form a third distinct category, but is a subcategory of the ‘all

other cases’ conduct.” United States v. Yates, 304 F.3d 818, 823 (8th Cir. 2002). The circuits

vary as to whether physical contact is required for the second category of forcible assault. See

infra note 7.

Other circuits have also looked to the common law definition to define “simple assault”

5

in § 111(a) cases. See, e.g., Yates, 304 F.3d at 821-22; McCulligan, 256 F.3d at 102; Ramirez,

233 F.3d at 321; Chestaro, 197 F.3d at 605.

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this

6

Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior

to October 1, 1981.

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imprisonment.4

In the statutory language of § 111(a) Congress did not define “simple

assault” or the difference between a forcible assault that should be considered a

“simple assault” and an “all other cases” forcible assault. However, in a recent §

111(a) case, this Court discussed the difference. See United States v. Fallen, 256

F.3d 1082, 1088 (11th Cir. 2001). In Fallen, this Court first noted that simple

assault at common law “is 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.’” Id. (emphasis added) (alteration in original); see also 5

United States v. Renfro, 620 F.2d 497, 500 (5th Cir. 1980).6
Some circuits have concluded that the second category of forcible assault (i.e., the “all 7

other cases” of forcible assault) requires some touching or physical contact. See, e.g.,

McCulligan, 256 F.3d at 104 (requiring proof of actual contact to sustain a conviction for a §

111(a) offense beyond simple assault). However, the Eighth Circuit in Yates, 304 F.3d at 822,

like this Court in Fallen, has said that actual physical contact is not required in “all other cases”

of forcible assault. Rather, the Eighth Circuit concluded that “all other cases” of forcible assault

in § 111(a) includes all other assaults that are not within the common law definition of simple

assault. Yates, 304 F.3d at 823.

We need not address whether a threat or attempt to throw urine in someone’s mouth, 8

nose and eyes constitutes a threat of serious bodily injury because, here, Martinez actually threw

the urine, making physical contact with Parodi.

10

The Fallen Court also said that “all other cases” of forcible assault in §

111(a) “have to be something more, such as a willful attempt or threat to inflict

serious bodily injury, coupled with an apparent present ability, which causes the

intended victim a reasonable apprehension of immediate serious bodily harm or

death.” Fallen, 256 F.3d at 1088 (first emphasis added). Fallen involved verbal

threats to shoot two federal officers where there was no physical contact. Id. at

1087-88. The Fallen Court expressly rejected the argument that the second

category of forcible assault must always involve actual physical contact. Id. 7

Fallen, however, did not address the proper category of a § 111(a) forcible

assault when the assault conduct at issue involves physical contact. Nevertheless, 8

every circuit to address the question has held that an assault that involves physical

contact falls within the “all other cases” provision of § 111(a) and is not a “simple

assault” under § 111(a). See United States v. Hathaway, 318 F.3d 1001, 1008-09

(10th Cir. 2003) (involving a defendant who pushed a social security
Because Martinez’s offense involved physical contact, rather than threats of serious 9

bodily injury, his reliance on Fallen is misplaced. 

11

administration agent in the chest and grabbed his tie, thereby choking him); United

States v. Ramirez, 233 F.3d 318, 321-22 (5th Cir. 2000) (involving a defendant

who threw a cup of urine/feces at a correctional office, striking him in the chest

and lower body), overruled on other grounds by United States v. Longoria, 298

F.3d 367, 372 & n.6 (5th Cir. 2002) (en banc); United States v. Chestaro, 197 F.3d

600, 605-06 (2d Cir. 1999) (involving a defendant who wielded a boxcutter and

struggled with postal police officers); see also United States v. Yates, 304 F.3d

818, 822 (8th Cir. 2002) (involving a defendant who drove a car at United States

marshals, but did not make physical contact and limiting “simple assaults” under §

111(a) to assaults without physical contact).

Turning to this case, we first note that the indictment charged that Martinez

“knowingly and intentionally did forcibly assault, resist, oppose, impede,

intimidate, and interfere with” a federal correctional officer “by physically striking

[him] about the face and body with a liquid that was or appeared to be urine” in

violation of § 111(a)(1). In other words, Martinez’s charged offense involved

actual physical contact rather than mere threats or attempts to inflict bodily injury

(i.e., “simple assault”). Accordingly, we agree with our sister circuits and 9

conclude that Martinez’s offense, which involved actual physical contact, falls
See supra note 1. 10

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within the “all other cases” provision of § 111(a) and not within the “simple

assault” provision. Furthermore, since minimal contact is sufficient to violate §

111(a), United States v. Hernandez, 921 F.2d 1569, 1577 (11th Cir. 1991), the

physical contact need not have resulted in actual bodily injury. 

We also reject Martinez’s argument that the second category of forcible

assault always requires a threat to inflict serious bodily injury. While a threat to

inflict serious bodily injury without any actual physical contact is sufficient under

Fallen to establish an “all other cases” forcible assault, an assault with actual

physical contact is also sufficient to prove an “all other cases” forcible assault.

The pattern jury instruction that Martinez urged the district court to use

addresses an “all other cases” forcible assault in which a defendant makes threats

or attempts to inflict serious bodily injury but no actual physical contact occurs.10

That pattern jury instruction was not appropriate in Martinez’s particular case

because his offense involved actual physical contact rather than threats or attempts. 

Thus, the district court properly rejected Martinez’s request to give that particular

pattern jury instruction and instead properly defined a forcible assault in his case as

“an assault which results in physical contact which does not involve a deadly

weapon or bodily harm.” The definition as instructed accurately reflected the
We review the sufficiency of the evidence de novo, viewing the evidence in a light most

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favorable to the government and making all reasonable inferences and credibility determinations

in favor of the government and the jury’s verdict. United States v. Garcia, 405 F.3d 1260, 1269

(11th Cir. 2005).

We likewise reject Martinez’s claim that the government was required to prove that the 12

liquid thrown at Parodi was actually urine. Nonetheless, we note that the government presented

evidence that the liquid smelled like urine to Parodi and Giraldo, that Giraldo observed Martinez

urinating in another bottle and saying “I got more for you” after spraying the liquid, and that

Martinez himself apologized to Giraldo for hitting him with urine.

13

applicable law given the evidence presented in Martinez’s case.

Martinez also argues that the district court erred when it defined the phrase

“knowingly and willfully” as used in the indictment as “done voluntarily and

intentionally, and not because of mistake or accident.” Martinez’s contention that

this instruction modified the offense from a specific intent offense to a general

intent offense is without merit and we need not discuss it further. See United

States v. Ettinger, 344 F.3d 1149, 1154 (11th Cir. 2003) (recognizing that specific

intent is not an element of a § 111 offense).

B. Sufficiency of the Evidence

Martinez also argues that the government failed to prove beyond a

reasonable doubt that he intended to inflict serious bodily injury to Parodi. This 11

argument hinges on Martinez’s argument, which we have already rejected, that an

“all other cases” forcible assault requires an attempt or threat to inflict serious

bodily injury. As discussed supra, the district court correctly instructed the jury 12
14

on the term “forcible assault” under the evidence in this case. Specifically, the

district court made it clear that the government needed to prove beyond a

reasonable doubt that: (1) Martinez “forcibly assaulted” Parodi by committing an

assault that resulted in physical contact, but that did not involve bodily injury or a

deadly weapon; (2) that Parodi was a federal officer engaged in the performance of

official duties; and (3) that Martinez acted knowingly and willfully, meaning his

actions were voluntary and intentional and not the result of mistake or accident. 

The government’s evidence was sufficient to establish Martinez’s guilt. The

evidence showed that Martinez sprayed a urine-like liquid through the slot in his

cell door; that the stream of liquid made physical contact with Parodi’s chest and

head, but did not result in serious bodily harm; that, at the time of the incident,

Parodi was a correctional officer conducting a linen exchange in the SHU where

Martinez was housed; and that Martinez intended the liquid to make contact with

Parodi and, indeed, had planned the offense ahead of time. From this evidence, a

reasonable jury could conclude that all the elements of a § 111(a) offense were

met. 

C. Closing Argument

Martinez contends that the district court abused its discretion when it

prohibited him from arguing during closing about the government’s failure to
We review a district court’s restitution order for an abuse of discretion, but the legality

13

of the order is reviewed de novo. United States v. Yeager, 331 F.3d 1216, 1227 (11th Cir.

2003).

15

produce a videotape of the incident. Although evidence was presented at trial that

video cameras were present in the SHU, there was no evidence that the cameras

were connected to a recording device or that a videotape of the incident actually

existed. A district court does not abuse its discretion by prohibiting counsel from

making arguments that are unsupported by the record. United States v. Hall, 77

F.3d 398, 400 (11th Cir. 1996) (explaining that reversal is warranted “only if

counsel is prevented from making all legal arguments supported by the facts”). 

D. Restitution Order

Finally, Martinez challenges the district court’s order requiring Martinez to

pay restitution to Parodi for his medical bills.13

The Mandatory Victims Restitution Act (“MVRA”) applies to a conviction

for an offense: (1) that is a crime of violence, which is a crime that has as an

element the use, attempted use or threatened use of physical force against the

person or property of another; and (2) in which an identifiable victim suffered a

physical injury or pecuniary loss. See 18 U.S.C. §§ 16, 3663A(c)(1). The MVRA

provides that the restitution order shall require the defendant to pay an amount

equal to the cost of necessary medical and related professional services and devices
16

relating to physical, psychiatric and psychological care. 18 U.S.C.

§ 3663A(b)(2)(A).

Martinez does not dispute that forcible assault is a crime of violence under

the MVRA. Rather, Martinez contends that restitution should not be awarded for

medical consultations and check-ups for uninjured victims.

The MVRA permits restitution for both physical injury and pecuniary loss. 

Thus, even though Parodi was not seriously injured by Martinez’s assault, Parodi

had to expend $1,801.63 in medical tests to make that determination. Some of the

urine-like liquid Martinez sprayed on Parodi got in his mouth, nose and eyes, and

Parodi did not know Martinez’s medical history. Until Parodi had the medical tests

performed, he did not know whether he had contracted a communicable disease as

a result of Martinez’s actions. Therefore, Parodi at a minimum suffered a

pecuniary loss under the MVRA. Furthermore, because these medical tests were

necessary to rule out serious injury, the district court did not abuse its discretion in

ordering Martinez to pay an amount equal to their cost.

AFFIRMED.