UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4902

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID MICHAEL GERALD,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Liam O’Grady, District 

Judge. (1:13-cr-00192-LO-1)

Submitted: October 29, 2014 Decided: January 13, 2015

Before GREGORY and DUNCAN, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Lance A. Wade, Evan M. Mendelson, WILLIAMS & CONNOLLY LLP, 

Washington, D.C., for Appellant. Dana J. Boente, Acting United 

States Attorney, Matt J. Gardner, Assistant United States 

Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

David Michael Gerald appeals from his conviction of 

assaulting, resisting, opposing, impeding, intimidating, or 

interfering with a federal officer, in violation of 18 U.S.C. 

§ 111(a) (2012). He argues that the district court erred in 

failing to instruct the jury that it could convict him under the 

“physical contact” prong of § 111(a) only if it found that he 

had assaulted the officer (“the assault issue”). Gerald further 

contends that the district court abused its discretion by 

choosing to answer a jury question about the lawfulness of the 

officer’s actions and by the content of that response. Finding 

no error, we affirm.

As to the assault issue, ordinarily we review jury 

instruction de novo. United States v. Powell, 680 F.3d 350, 355 

(4th Cir. 2012). If, however, the defendant failed to object to 

the instruction on the basis asserted on appeal, our review is

for plain error. United States v. Jeffers, 570 F.3d 557, 569

(4th Cir. 2009). Although the parties disagree as to whether 

Gerald preserved the assault issue, we need not resolve this 

dispute because the district court’s instruction was proper even 

under de novo review.

We recently held that it is “proper for the district 

court to instruct the jury that [the defendant] could have 

committed any of the threshold acts charged—not ‘assault’ only—
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to be found guilty of a § 111 offense, so long as the other 

elements of the offense were satisfied.” United States v. 

Briley, ___ F.3d ___, 2014 WL 5355522, at *6 (4th Cir. Oct. 22, 

2014). The district court here instructed the jury that it 

could convict Gerald if it found that he forcibly assaulted or 

resisted or opposed or impeded or interfered with the officer. 

It further instructed that the Government need prove that Gerald 

forcibly committed only one of the several alternative acts 

charged. Because these instructions comport with our holding in 

Briley, we find no error.

Gerald also challenges the district court’s 

supplemental instruction. During deliberations, the jury asked

the district court to clarify whether a push from an officer was 

lawful. The district court, although observing that the 

question was vague and unclear, concluded that it could respond 

generally on the law, and it informed the jury that the right to 

detain or arrest carries with it the right to use the amount of 

force that a reasonable officer would objectively think 

necessary to effect the arrest. Gerald argues that the district 

court should not have answered the question at all because it 

was vague, and further that any response should have included 

factors drawn from a model jury instruction.

We review the propriety of this instruction for abuse 

of discretion. Jeffers, 570 F.3d at 566. In providing a 
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supplemental instruction in response to a jury question, “the 

district court’s duty is simply to respond to the jury’s source 

of confusion fairly and accurately without creating prejudice. 

The particular words chosen, like the decision whether to issue 

any clarification at all, are left to the sound discretion of 

the district court.” United States v. Smith, 62 F.3d 641, 646 

(4th Cir. 1995) (citation omitted).

We perceive no abuse of discretion in the district 

court’s decision to respond to the jury’s inquiry or in the 

content of that response. The district court acknowledged that 

the facts underpinning the question were unclear, but concluded 

that the general law applicable to such scenarios was not. It 

drew upon language from the Supreme Court in drafting its 

supplemental instruction. See Graham v. Connor, 490 U.S. 386 

(1989). This claim is therefore unavailing.

Accordingly, we affirm the district court’s judgment. 

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the material before this 

court and argument will not aid the decisional process.

AFFIRMED