                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0285n.06

                                           No. 11-5150

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
UNITED STATES OF AMERICA                                 )                       Mar 21, 2013
                                                         )                DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                               )
                                                         )
               v.                                        )        ON APPEAL FROM THE
                                                         )        UNITED STATES DISTRICT
PHINEHAS WEEKES,                                         )        COURT FOR THE EASTERN
                                                         )        DISTRICT OF KENTUCKY
       Defendant-Appellant                               )
                                                         )




BEFORE: SUTTON and GRIFFIN, Circuit Judges; and WELLS, District Judge.*

       WELLS, District Judge.

       Phinehas Weekes appeals a jury conviction on assault charges, pursuant to 18 U.S.C.

§ 111(a)(1), in connection with a fight between Mr. Weekes and Officer Bryan Slagle, a corrections

officer at the United States Penitentiary McCreary, where the Appellant is housed as an inmate. Mr.

Weekes claims (1) the evidence was insufficient to warrant his conviction and (2) the district court

failed to properly instruct the jury on the element of physical assault as a component of a felony

assault offense. Finding the evidence sufficient to convince a reasonable jury of guilt beyond a

reasonable doubt, and further finding the jury instruction error harmless, we affirm the conviction.




       *
        The Honorable Lesley Wells, Senior United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 11-5150
United States v. Weekes


                                                 I.

       On 27 January 2010, Corrections Officer Bryan Slagle confiscated a set of unauthorized bed

sheets from Mr. Weekes’ cell at the United States Penitentiary in McCreary County, Kentucky. Mr.

Weekes had placed the sheets over his cell windows blocking any view by corrections personnel.

That evening Mr. Weekes made his way to Officer Slagles’ office to discuss the removal of the extra

sheets and to ask the Officer to sign a form permitting the Appellant’s use of extra bed sheets.

       Officer Slagle testified that when he refused to sign the form Mr. Weekes became agitated.

Officer Slagle spoke of feeling threatened and endangered. Further testimony indicated that Officer

Slagle stepped around his desk and placed his hands on the Appellant to restrain him. When Officer

Slagle attempted to force Mr. Weekes against the wall, the Appellant “kicked off” the wall and

“body slammed” the officer to the ground where, according to Officer Slagle, Mr. Weekes pinned

him to the ground and punched him repeatedly until other officers arrived to remove Mr. Weekes.

       Mr. Weekes testified that Officer Slagle came around the desk and attacked him, knocked

him against a wall, and began choking him. Mr. Weekes insisted that he took action to protect

himself, pinning Officer Slagle to the ground until additional officers arrived. Appellant further

remarked that he did not resist the arriving officers and denied confronting, swinging at, punching,

or intending to hurt Officer Slagle.

       Officer Joseph Crawford testified that when he arrived at the scene he witnessed Mr. Weekes

attempting to strike Officer Slagle while the Appellant sat atop of the officer. Officer Crawford




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United States v. Weekes


testified that, with the assistance of Officers Dixon and Foster, Mr. Weekes was eventually

restrained.

       The government charged the Appellant with Assault on a Protected Officer, a violation of

18 U.S.C. § 111(a)(1). After a one day trial on the merits, a jury found Mr. Weekes guilty beyond

a reasonable doubt:

       1. That the defendant forcibly assaulted, resisted, opposed, impeded, intimidated, or
       interfered with Corrections officer Bryan Slagle;

       2. That the person assaulted, resisted, opposed, impeded, intimidated, or interfered with a
       federal law enforcement officer who was then engaged in the performance of his official
       duties.

       3. That the defendant acted knowingly and intentionally and

       4. That the defendant was not acting in self-defense.

       Following a hearing, the district court sentenced Mr. Weekes to serve 24 months in the

Bureau of Prisons, the time to be served consecutive to any other previous sentence. Mr. Weekes’

Sentencing Guideline range provided for between 24 and 30 months of imprisonment for this

conviction.

                                                II.

       In reviewing the denial of a motion challenging the sufficiency of the evidence, “the relevant

question is whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This court reviews de novo whether the

evidence is sufficient, determining if after viewing all evidence in the light most favorable to the

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No. 11-5150
United States v. Weekes


prosecution, any reasonable jury could find guilt beyond a reasonable doubt. United States v. Talley,

164 F.3d 989, 996 (6th Cir. 1999). A defendant making such a challenge bears a very heavy burden.

United States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999). “Circumstantial evidence alone is

sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis

except that of guilt.” Id. (internal quotation marks and citation omitted). The jury may draw any

reasonable inferences from direct, as well as circumstantial, proof. In assessing the sufficiency of

the evidence, “we do not weigh the evidence, assess the credibility of the witnesses, or substitute our

judgment for that of the jury.” United States v. Wright, 16 F.3d 1429, 1440 (6th Cir. 1994). “[W]e

draw all available inferences and resolve all issues of credibility in favor of the jury's verdict.”

United States v. Salgado, 250 F.3d 438, 446 (6th Cir. 2001).

        In challenging the sufficiency of the evidence, Mr. Weekes maintains he did not initiate the

altercation, that he was defending himself against Officer Slagle’s assault. Yet, the jury not only

heard Mr. Weekes’ contention of self-defense at trial, but also heard Mr. Weekes’ admission that he

resisted Officer Slagle’s attempt to restrain him, and that he instead forced Officer Slagle to the floor.

The jury further heard testimony that Officer Slagle attempted to restrain Mr. Weekes, that the

Appellant grabbed Officer Slagle, forced him to the ground and sat on the officer while attempting

to punch the officer in the face. The jury heard testimony that several officers had to pull Mr.

Weekes off Officer Slagle.

        To support a conviction for a violation of 18 U.S.C. § 111(a)(1), the Government must show

that the defendant forcibly assaulted (or resisted, opposed, impeded, intimidated, or interfered with)


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No. 11-5150
United States v. Weekes


a federal official engaged in the performance of his or her official duties. See United States v.

Robinson, 86 F. App’x. 820, 821 (6th Cir. 2003). The Indictment alleged that Mr. Weekes “with

physical contact, did forcibly assault and intimidate correctional officer B.S. while B.S. was in the

performance of his official duties as a correctional officer, all in violation of 18 U.S.C. § 111(a)(1).”

        The Sixth Circuit has recognized that, for purposes of section 111, an individual may make

out an affirmative defense of self-defense against a federal law enforcement official who uses

excessive force in a narrow range of circumstances. See United States v. Span, 970 F.2d 573, 577

(9th Cir. 1992); see also id. at 580 (noting that an individual has a limited right to offer reasonable

resistance to arrest that is triggered by the officer's bad faith or provocative conduct). To do so,

however, a defendant must offer evidence to show: “(1) a reasonable belief that the use of force was

necessary to defend himself or another against the immediate use of unlawful force and (2) the use

of no more force than was reasonably necessary in the circumstances.” United States v. Urena, 659

F.3d 903, 907 (9th Cir. 2011) (quoting United States v. Biggs, 441 F.3d 1069, 1071 (9th Cir. 2006)).

Moreover, an individual who is the attacker cannot make out a claim of self-defense as a justification

for an assault. Id.

        In this instance, the jury found that Mr. Weekes “forcibly assaulted, resisted, opposed,

impeded, intimidated, or interfered with” Officer Slagle. The jury found Mr. Weekes acted while

the Officer “was then engaged in the performance of his official duties,” that Weekes “acted

knowingly and intentionally,” and that he “was not acting in self defense.”




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No. 11-5150
United States v. Weekes


       Viewing the evidence in the light most favorable to the prosecution, Mr. Weekes’ challenge

to the sufficiency of the evidence falls far short of the burden necessary to overturn his conviction.

The Government introduced ample proof from which the jury could reasonably infer that Weekes

purposefully assaulted Officer Slagle, that he made physical contact with the officer, and that he was

not acting in self defense. In particular, Officer Slagle testified that Weekes became increasingly

belligerent and aggressive when the Appellant realized the officer would not sign a form for extra

bedding. Officer Slagle testified that he asked Weekes to go to the lieutenant’s office and when

Officer Slagle attempted to leave his own office Weekes blocked Officer Slagle’s exit. Officer Slagle

testified that he then attempted to restrain Weekes, who resisted, knocking Officer Slagle backwards

onto his desk, grabbing the officer by the shirt, slamming him against a bookshelf, and finally

pinning the officer to the floor with his body as he tried to punch the officer in the face. Officers

Joseph Crawford, Mark Dixon, and Ervin Foster testified to seeing Mr. Weekes on top of Officer

Slagle and pulling Weekes off while the Appellant continued to fight.

       In addition, Mr. Weekes testified that Officer Slagle “was kind of choking me,” and

“wouldn’t stop struggling with me. So I made my decision to put Officer Slagle on the floor.” Mr.

Weekes also testified that after he forced Officer Slagle down, he put his knees on the officer and

“held him down.”

       Given the strength of the evidence against the Appellant, the jury rejected his theory of self-

defense and convicted him of assaulting Officer Slagle. From the evidence presented, the jury could

reasonably conclude that Mr. Weekes knew Officer Slagle was a federal officer, was carrying out


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United States v. Weekes


his official duties, and that the officer was not engaged in the use of excessive force. These

reasonable conclusions negated Mr. Weekes’ claim of self-defense.

                                               III.

       Mr. Weekes did not object to the jury instruction over which he now appeals. As such, the

Court reviews the issue for plain error. Johnson v. United States, 520 U.S. 461, 465–66 (1997).

Mr. Weekes must show that the instruction was (1) error (2) that was plain, (3) that affected

substantial rights and (4) that, if uncorrected, would “seriously affect[ ] the fairness, integrity or

public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993)

(quoting United States v. Young, 470 U.S. 1, 15 (1985)).

       Mr. Weekes contends the Verdict Form did not include the element necessary to make the

Appellant’s conviction a felony-level version of the offense because the jury was not asked to find

that Mr. Weekes forcibly or intentionally created physical conduct himself. Mr. Weekes seeks to

have his sentence vacated and remanded for resentencing for the misdemeanor-level offense of 18

U.S.C. § 111 consistent with the jury’s verdict.

       Mr. Weekes’ plain error challenge of the jury instructions runs aground on the third and

fourth requirements that he show his sentence violates his substantial rights or seriously affects the

fairness, integrity, or public reputation of the judicial proceedings. The jury instruction element

missing was that the jury must find Mr. Weekes’ conduct resulted in physical contact with Officer

Slagle. Yet, where the entire corpus of the trial consisted of uncontroverted witness testimony of a

physical alteration, including Mr. Weekes’ admission that he “put Officer Slagle on the floor” and


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United States v. Weekes


“held him down,” we cannot find the jury instruction error anything more than harmless. Nor, is an

error implicated under Apprendi v. New Jersey, 530 U.S. 466 (2000), where, as here, the evidence

is both overwhelming and uncontroverted as to the element requiring proof. See United States v.

Osborne, 673 F.3d 508, 513 (6th Cir. 2012) (finding no plain error where the element in question

was entirely uncontroverted); United States v. Cleaves, 299 F.3d 564, 569 (6th Cir. 2002) (finding

the overwhelming nature of the evidence presented avoided any plain error); United States v. King,

272 F.3d 366, 379-80 (6th Cir. 2001) (finding defendants’ substantial rights not affected by Apprendi

error because the defendants’ failed to object and the evidence was undisputed and overwhelmingly

reliable).

                                                  IV.

        For the foregoing reasons, we find that the evidence is sufficient to support Mr. Weekes’

felony assault conviction, and that the alleged jury instruction error is not plain error in light of the

overwhelming uncontradictory evidence of physical conduct. We affirm the conviction and

sentence.




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