                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                     No. 07-50000
                Plaintiff-Appellee,
               v.                               D.C. No.
                                             CR-05-01516-JAK
LEE CHAPMAN,
                                                OPINION
             Defendant-Appellant.
                                        
        Appeal from the United States District Court
           for the Southern District of California
         John A. Houston, District Judge, Presiding

                 Argued and Submitted
          December 5, 2007—Pasadena, California

                      Filed June 23, 2008

  Before: David R. Thompson and Kim McLane Wardlaw,
  Circuit Judges, and Edward C. Reed, Jr.,* District Judge.

                  Opinion by Judge Wardlaw




  *The Honorable Edward C. Reed, Jr., Senior United States District
Judge for the District of Nevada, sitting by designation.

                               7215
                  UNITED STATES v. CHAPMAN               7217


                         COUNSEL

Steven L. Barth, Federal Defenders of San Diego, Inc., Sand
Diego, California, for the defendant-appellant.

Karen P. Hewitt, Bruce R. Castetter, Christina M. McCall,
United States Attorneys, San Diego, California, for the
plaintiff-appellee.


                         OPINION

WARDLAW, Circuit Judge:

  Lee Chapman appeals his misdemeanor conviction under
18 U.S.C. § 111(a) for forcibly resisting, opposing, impeding,
and interfering with a federal officer engaged in official
duties. Because § 111(a) allows misdemeanor convictions
only where the acts constitute simple assault, and because
Chapman’s nonviolent civil disobedience did not constitute a
7218                   UNITED STATES v. CHAPMAN
simple assault, we reverse and vacate the judgment of convic-
tion.

                            I.   BACKGROUND

   On August 14, 2006, two contract security officers from the
Department of Homeland Security at the San Ysidro Port of
Entry approached Chapman to investigate complaints that he
had been cutting in line at the pedestrian area leading to the
border checkpoint. After a brief interaction, the three individ-
uals began walking toward the Customs and Border Protec-
tion Inspection area.1 As they approached the inspection area,
the officers signaled to Officer Buchanan of the Federal Pro-
tective Services to stop Chapman, and he did. Officer
Buchanan asked Chapman to move to the side of the walkway
away from the other pedestrians, but Chapman refused. He
then tried to physically escort Chapman to the side of the
walkway, but Chapman “tensed up.” At that point, Officer
Buchanan placed Chapman under arrest and tried to pull
Chapman’s hand behind his back. Chapman took a rigid
stance, and Officer Buchanan was not strong enough to move
Chapman’s arm. In the process, Officer Buchanan slipped and
fell to the floor. He then stood up and told Chapman to lie
down on the ground, but Chapman remained motionless and
maintained his strong stance. In response, Officer Buchanan
struck Chapman in the thigh with his tactical baton. Chapman,
unfazed and upset at what he perceived as an unjustified
attack, told Officer Buchanan to “hit [him] again.” Officer
Buchanan then struck Chapman a second time with the baton,
to no effect. Finally, Officer Buchanan sprayed pepper spray
directly into Chapman’s eyes; once the spray had penetrated,
  1
    Chapman and the officers testified to differing versions of the encoun-
ter. Chapman alleges that the officers never mentioned the line-cutting
accusations against him and were overtly hostile, so he proceeded to the
inspection area to report their inappropriate behavior. In contrast, the offi-
cers assert that Chapman acknowledged the complaints but refused to
return to the back of the line, so they escorted him to the inspection area
for further questioning.
                     UNITED STATES v. CHAPMAN                      7219
Officer Buchanan and another officer moved in and placed
Chapman in handcuffs. At no point in the encounter did
Chapman attempt to strike, nor did he use any profanity
against any officer.

   Chapman was arrested and charged in a criminal complaint
alleging that he “did knowingly and intentionally forcibly
resist, oppose, impede, and interfere with” a federal officer in
violation of 18 U.S.C. § 111(a)(1). The government filed a
bill of particulars, which described the necessary elements as
follows: (1) “the defendant forcibly resisted or impeded, etc.”;
(2) “Officer Buchanan was a federal employee engaged in
official duties”; and (3) “the defendant acted wilfully and
knowingly when he committed the prohibited acts.” The gov-
ernment alleged these elements were satisfied when Chapman
“refused to follow Officer Buchanan’s orders,” “forcibly
resisted” the officer’s “attempt[s] to place Chapman in hand-
cuffs,” “continued to struggle” with the officers, and, finally,
“actively resisted being handcuffed . . . [e]ven after being
sprayed with pepper spray.”

   Chapman waived his right to trial by jury and testified at
the bench trial, as did each of the officers involved in the
encounter. The district court, relying on our decision in
United States v. Sommerstedt, 752 F.2d 1494, 1496-97 (9th
Cir. 1985), concluded that to prove a violation of 18 U.S.C.
§ 111(a)(1), “the government need only show that any level
of force was used against a federal officer.” It held that
“[t]hrough his affirmative and consistent refusal to obey Offi-
cer Buchanan’s requests and commands to move to the side
as well as to get to the ground, Defendant acted knowingly
and willfully while resisting, interfering, opposing and imped-
ing the action of Officer Buchanan.” Finding Chapman guilty
of the misdemeanor offense, the court sentenced him to time
served, and denied his motion for judgment of acquittal based
on insufficiency of the evidence. Chapman timely appeals.2
  2
   Chapman also appeals the district court’s denial of his discovery
request for “all manuals, memoranda or training materials concerning pro-
7220                 UNITED STATES v. CHAPMAN
         II.   JURISDICTION AND STANDARD OF REVIEW

   We have jurisdiction pursuant to 18 U.S.C. § 1291. We
review de novo the denial of the motion for judgment of
acquittal based on insufficiency of the evidence. United States
v. Atalig, 502 F.3d 1063, 1066 (9th Cir. 2007). We “must
view the evidence in the light most favorable to the govern-
ment and determine whether any rational trier of fact could
have found the essential elements of the crime beyond a rea-
sonable doubt.” Id.

                           III.   ANALYSIS

   We agree with Chapman that, viewing the evidence in the
light most favorable to the government, no rational trier of
fact could find that Chapman’s conduct rises to the level of
a criminal offense under 18 U.S.C. § 111. Section 111 pro-
vides:

     (a) 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 per-
          formance of official duties; or

          (2) forcibly assaults or intimidates any per-
          son 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,

cedure, practices, regulations or official duties of the U.S. Customs and
Border Patrol, GSA Security, Federal Police and the operations of the San
Ysidro port of entry.” Because we reverse Chapman’s conviction on the
basis of insufficient evidence, we do not consider Chapman’s discovery
claim.
                     UNITED STATES v. CHAPMAN                      7221
           shall, where the acts in violation of this sec-
           tion 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 commis-
       sion 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 impris-
       oned not more than 20 years, or both.

Id.3

   [1] In Jones v. United States, 526 U.S. 227, 252 (1999), the
Supreme Court held that where a statute sets out separate pun-
ishment clauses, each adding further elements to the crime,
the punishment clauses constitute separate and distinct crimi-
nal offenses, rather than one offense with different punish-
ments. Relying on Jones, several of our sister circuits have
held that § 111 creates three distinct offenses, one misdemea-
nor and two felonies. See United States v. Hathaway, 318
F.3d 1001, 1007 (10th Cir. 2003); United States v. Yates, 304
F.3d 818, 821-22 (8th Cir. 2002); United States v. McCulli-
gan, 256 F.3d 97, 102 (3d Cir. 2001); United States v. Che-
staro, 197 F.3d 600, 608 (2d Cir. 1999); United States v.
Nuñez, 180 F.3d 227, 233 (5th Cir. 1999). We agree that this
formulation of the statute is required by Jones. Violations of
the “simple assault” provision constitute misdemeanors. 18
  3
   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 district court properly applied
the version of § 111(a) in effect at the time the conduct underlying the
offense of conviction occurred, as do we.
7222              UNITED STATES v. CHAPMAN
U.S.C. § 3559(a)(6). Violations of the “all other cases” or
dangerous weapon or bodily harm provisions constitute felo-
nies. Id. §§ 3559(a)(3), (4).

   [2] Section 111(a) is inartfully drafted, leaving two major
ambiguities. First, it distinguishes between misdemeanor and
felony conduct by use of the term “simple assault,” which is
not defined in the statute or in any other federal statute. Sec-
ond, § 111(a)(1) appears to prohibit six different types of
actions, only one of which is “assault,” but then it draws the
line between misdemeanors and felonies solely by referencing
the crime of assault. Therefore, it is unclear whether the stat-
ute prohibits acts of resistance, opposition, impediment,
intimidation, or interference that do not also involve an under-
lying assault.

   Courts of appeals have focused on the first ambiguity—
§ 111(a)’s use of the term “simple assault” as the means to
distinguish between misdemeanor and felony violations of the
statute. For example, in Chestaro, the Second Circuit consid-
ered a challenge to § 111(a) on the ground that it was uncon-
stitutionally vague because it did not clearly distinguish
between misdemeanor and felony conduct. 197 F.3d at 604-
05. The court acknowledged that “simple assault” was not
explicitly defined, but adopted the common law understand-
ing that “simple assault” was assault that did not involve
physical contact. Id. at 605-06. Accordingly, the Second Cir-
cuit concluded that § 111(a) criminalized three distinct cate-
gories of conduct: (1) assaults that do not involve physical
contact (punishable up to one year), (2) assaults that do
involve physical contact (punishable up to eight years), and
(3) assaults that involve a deadly or dangerous weapon or
bodily injury (punishable by up to twenty years). Id. at 606;
see also McCulligan, 256 F.3d at 102 (adopting the Chestaro
statutory construction of § 111(a)); United States v. Ramirez,
233 F.3d 318, 321 (5th Cir. 2000) (same), overruled on other
grounds by United States v. Cotton, 535 U.S. 625 (2002).
Therefore, under this formulation, someone who punched an
                   UNITED STATES v. CHAPMAN                   7223
arresting officer would be guilty of a felony, but someone
who threw a punch and missed would be guilty of only a mis-
demeanor.

   Other circuits have drawn different lines between misde-
meanor and felony conduct. For example, the Tenth Circuit in
Hathaway held that proof of actual physical contact, while
sufficient, is not necessary to sustain a conviction of non-
simple assault under § 111(a). 318 F.3d at 1008-09; see also
Yates, 304 F.3d at 822. Rather, an assault, coupled with the
presence of physical contact or a similar aggravating factor,
such as the intent to commit murder or a serious felony, is not
simple. See Hathaway, 318 F.3d at 1009; Yates, 304 F.3d at
823. Congress’s recent amendment to the statute adopted this
approach. Under § 111(a), as amended, assaults are treated as
felonies if they “involve physical contact . . . or the intent to
commit another felony.” See Pub. L. No. 110-177.

   [3] One thing is consistent about each of these interpreta-
tions: In resolving the statute’s first ambiguity, it also resolves
the second. Specifically, in drawing the line between misde-
meanor and felony conduct, both the Second Circuit, Che-
staro, and the Tenth Circuit, Hathaway, although construing
the statutory language differently, have adopted a construction
that leaves no room for a conviction that does not involve at
least some form of assault. Therefore, under each of these
approaches, while a defendant could be charged with resist-
ing, opposing, impeding, intimidating, or interfering, he could
not be convicted unless his conduct also amounted to an
assault.

   [4] Chapman was not charged with assaulting Officer
Buchanan, nor could he have been. In response to the officer’s
attacks, Chapman did not threaten or attempt to injure the
officers in any way—he merely stood still, “tensing” his
body, saying, albeit possibly with some intensity, “hit me
again.” To constitute an assault, an action must be “either a
willful attempt to inflict injury upon the person of another, or
7224                UNITED STATES v. CHAPMAN
. . . a threat to inflict injury upon the person of another which,
when coupled with an apparent present ability, causes a rea-
sonable apprehension of immediate bodily harm.” United
States v. Dupree, 544 F.2d 1050, 1051 (9th Cir. 1976). Chap-
man’s conduct does not meet either definition. Therefore,
while his actions might have constituted “resistance,” “oppo-
sition,” or an “impediment,” to the officers’ desire to move
him, they did not constitute “assault,” and so Chapman could
not have been convicted under either the Second or Tenth Cir-
cuits’ interpretation of § 111(a).

   In response, the government argues that requiring an “as-
sault” in all § 111(a) convictions renders the remaining verbs
in the statute (resists, opposes, impedes, intimidates, and
interferes) functionally meaningless. It argues, therefore, that
we must allow convictions for non-assaultive conduct as long
as the conduct satisfies one of these other verbs.

   However, for the statute to be constitutional, it must draw
a line between that conduct which constitutes a misdemeanor
offense and that which constitutes a felony. See United States
v. Batchelder, 442 U.S. 114, 123 (1979) (“[V]ague sentencing
provisions may pose constitutional questions if they do not
state with sufficient clarity the consequences of violating a
given criminal statute.”). Moreover, this line must be suffi-
ciently clear that a reasonable person would be put on notice
of the potential criminality of his conduct. See id. (“A crimi-
nal statute is . . . invalid if it fails to give a person of ordinary
intelligence fair notice that his contemplated conduct is for-
bidden.”) (internal quotation marks omitted); see also
McBoyle v. United States, 283 U.S. 25, 27 (1931) (Holmes, J.)
(“[A] fair warning should be given to the world in language
that the common world will understand, of what the law
intends to do if a certain line is passed.”). In support of its
argument that non-assaultive conduct alone can support a con-
viction under § 111(a), the government makes no attempt to
explain how we would draw the line that the statute itself
makes between misdemeanors and felonies in those cases.
                  UNITED STATES v. CHAPMAN                 7225
   If we accepted the government’s argument that mere pas-
sive resistance is sufficient for a conviction under § 111(a),
the most straightforward reading of the statute would require
us to treat all such cases as felonies. Such non-assaultive con-
duct would, by definition, not amount to “simple assault” and
therefore could not qualify as a misdemeanor, triggering the
“in all other cases” felony clause. This reading ineluctably
leads to absurdity. A protester who resisted arrest by merely
standing still would be guilty of a felony punishable by up to
eight years imprisonment, whereas an individual who
attempted to punch an arresting officer could be guilty only
of a misdemeanor, so long as the attempted physical contact
was unsuccessful. Moreover, as the Seventh Circuit pointed
out when rejecting this very argument, in cases of simple
assault, the government would have the perverse incentive to
omit “assault” from the indictment and charge the defendant
only with “resistance” or “opposition,” thereby elevating the
criminal conduct from a misdemeanor to a felony. United
States v. Vallery, 437 F.3d 626, 633 (7th Cir. 2006). Like the
Seventh Circuit, we cannot conclude that Congress intended
such an absurd result.

   At the other extreme, if non-assaultive conduct could sup-
port a conviction under § 111(a), we might desire an interpre-
tation that such conduct be treated consistently as a
misdemeanor, treating only aggravated assaults as felonies.
Although this interpretation might make sense from a policy
perspective, it cannot be squared with the statute’s text. The
statutory language clearly limits the category of “misdemea-
nors” to cases of “simple assault” and then categorizes “all
other cases” felonies. Because the statute is not ambiguous as
to the demarcation between misdemeanors and felonies, we
cannot construe it in any other way, even if we so desired. See
United States v. Watkins, 278 F.3d 961, 965 (9th Cir. 2002)
(“[A] court should not read words into a statute that are not
there.”); Stanton Rd. Assoc. v. Lohrey Enters., 984 F.2d 1015,
1020 (9th Cir. 1993) (noting that the Supreme Court has
7226              UNITED STATES v. CHAPMAN
instructed this Court that we lack the power to “read into the
statute words not explicitly inserted by Congress”).

   If mere “resistance” is sufficient for a § 111(a) conviction,
we would have to find a meaningful way to distinguish
between those cases of “resistance” that would be punishable
as misdemeanors and those that would be punishable as felo-
nies. The Seventh Circuit suggested such a possibility in Val-
lery. There, the defendant pushed an officer in an attempt to
evade arrest, and was charged with “assault[ing], resist[ing],
imped[ing], and interfer[ing]” with the officer. Vallery, 437
F.3d at 629. The jury convicted Vallery, but only as to resist-
ing, impeding, and interfering, not as to the assault. Id. The
judge sentenced the offense as a misdemeanor. Id. Vallery did
not appeal his conviction, but the government did, arguing
that under the statute’s plain text, the offense had to be con-
sidered a felony. Id. at 630. As noted above, the Seventh Cir-
cuit rejected this argument. Id. at 633. Unfortunately, the
Vallery opinion is hardly a model of clarity. The Court repeat-
edly cites Chestaro’s formulation of § 111, which explicitly
requires an assault for both misdemeanor and felony convic-
tions under § 111(a). Id. at 630, 631. On the other hand, in
other parts of opinion, the Court seems to suggest that it
would allow convictions based on non-assaultive conduct, and
it would apply the same “physical contact” rule in those cases
as in cases involving an assault. Id. at 631, 633, 634.

   To the extent that dicta in Vallery suggests that mere resis-
tance is punishable under § 111(a) and that the physical con-
tact rule would distinguish misdemeanors and felonies in
those cases, we would disagree. If Congress had intended to
prohibit both assaultive and non-assaultive conduct and
intended to distinguish between misdemeanors and felonies
based solely on physical contact, it easily could have said so.
The use of the term “simple assault” as shorthand for the
physical contact rule only makes sense when describing
assaults. By using this term, Congress strongly suggested that
an assault was required for a § 111 conviction. This is espe-
                   UNITED STATES v. CHAPMAN                 7227
cially true in light of the recent statutory amendments, which
use the word “assault” in the description of both misdemea-
nors and felonies. See Pub. L. No. 110-177.

   Moreover, even if it were linguistically plausible to inter-
pret “simple assault” to mean “all cases lacking physical con-
tact,” this interpretation of the statute would lead to
nonsensical results. Physical contact is a compelling metric
for distinguishing between ordinary and aggravated assaults,
but the same cannot be said for non-assaultive conduct. For
example, in cases of mere resistance, it is not at all clear that
resistance with physical contact is any more culpable than
resistance without such contact, especially when, as in this
case, the physical contact is initiated by the arresting officer
rather than by the arrestee.

   [5] Accordingly, we reject the government’s reading of
§ 111, and hold, as suggested by the majority of our sister cir-
cuits, that convictions under this statute require at least some
form of assault. Section 111(a) creates two distinct offenses,
a misdemeanor and a felony, and Congress has distinguished
between these two offenses using language that is only mean-
ingful when describing assaults. Because Chapman did not
assault Officer Buchanan, his conviction under § 111(a) must
be reversed.

                       CONCLUSION

   18 U.S.C. § 111(a) allows misdemeanor convictions only in
cases “where the acts in violation of [§ 111(a)] constitute . . .
simple assault.” By “tensing up” in anticipation of Officer
Buchanan’s arrest and disobeying his orders to move and lie
down, Chapman may have made the officers’ job more diffi-
cult, but his actions did not amount to a simple assault.
Because Chapman’s conduct did not amount to a “simple
assault,” his misdemeanor judgment of conviction under
§ 111(a) is

  REVERSED AND VACATED.
