                                                                                      FILED
                                                                          United States Court of Appeals
                                         PUBLISH                                  Tenth Circuit

                       UNITED STATES COURT OF APPEALS                          February 27, 2018

                                                                              Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                                Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                                No. 16-4127
v.

AARON BRADLEY JEREB,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                               for the District of Utah
                          (D.C. No. 2:15-CR-00610-TC-1)
                       _________________________________

Scott Keith Wilson, Assistant Federal Public Defender (Kathryn N. Nester, Federal
Public Defender, and Jessica Stengel, Attorney, with him on the briefs), District of Utah,
Salt Lake City, Utah, for Defendant - Appellant.

Ryan D. Tenney, Assistant United States Attorney (John W. Huber, United States
Attorney, with him on the brief), District of Utah, Salt Lake City, Utah, for Plaintiff -
Appellee.
                        _________________________________

Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
                   _________________________________

McHUGH, Circuit Judge.
                    _________________________________


       Following a jury trial, Aaron Bradley Jereb was convicted of forcibly opposing a

federal officer, in violation of 18 U.S.C. § 111(b), along with three lesser crimes. The
trial judge sentenced Mr. Jereb to prison for seventy-two months, to be followed by

thirty-six months of supervised release. As a special condition of that release, Mr. Jereb

will be required to participate in a mental health treatment program.

       Mr. Jereb asks this court to vacate his § 111(b) conviction and remand for a new

trial. In the alternative, he asks us to reverse the imposition of mental health treatment

and remand for resentencing. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm

both the conviction and sentence.

                                  I.    BACKGROUND

                                    A. Factual History

       This case arises out of a roadside brawl between Mr. Jereb and Darren Schiedel,1 a

law enforcement officer of the United States Forest Service. Officer Schiedel and his K-9

partner, a German Shepherd called Livo, were driving home on October 15, 2015, when

they happened upon a red Chevrolet Blazer parked on the side of a remote, narrow road

in Uinta-Wasatch-Cache National Forest (“Uinta”). Thinking that unusual given the late

hour and lack of nearby recreation opportunities, Officer Schiedel decided to stop, pulling

up behind the Blazer. He engaged his truck’s side spotlight, exited, and approached, for

the moment leaving Livo behind.




       1
         Officer Schiedel’s last name is spelled inconsistently in the record, including at
times in the trial transcript. At trial he testified that it is spelled “Schiedel.” In this
opinion, we use the correct spelling when quoting from record materials, without noting
the alteration in each instance.


                                              2
       Mr. Jereb was seated in the Blazer’s front passenger seat. His girlfriend at the

time, Amber Haanpaa, was in the driver’s seat. That morning, Mr. Jereb and Ms.

Haanpaa each took three to five hits of methamphetamine and then drove from their

home in Rock Springs, Wyoming, to Salt Lake City, Utah, apparently for the purpose of

retrieving Mr. Jereb’s motorcycle from impoundment.2 Those plans soon changed. Upon

arriving in Salt Lake City, Ms. Haanpaa purchased $900 worth of heroin, some of which

she and Mr. Jereb intermittently smoked in a downtown parking lot for the next 90

minutes or so.3 Eventually, Mr. Jereb and Ms. Haanpaa got something to eat and then

spent an hour or two at a music store before setting off for the three-hour trek back to

Rock Springs. On the way out of town, they stopped at Uinta’s Lambs Canyon to again

use drugs, as was Ms. Haanpaa’s custom on her return trips from Salt Lake. Ms. Haanpaa


       2
         From the Presentence Investigation Report, we gather that Mr. Jereb’s
motorcycle was impounded after he was arrested in Utah about three weeks prior. On
September 23, Mr. Jereb was riding a motorcycle in Wyoming when he was stopped by a
Wyoming Highway Patrol officer. While the officer was checking Mr. Jereb’s license
information, Mr. Jereb allegedly fled the scene, leading officers on an interstate chase
that reached speeds as high as 114 miles per hour. He eventually submitted to a traffic
stop in Utah, where he was arrested and taken into custody. Mr. Jereb was extradited to
Wyoming on October 6 and released on bond on October 7.
       3
         Ms. Haanpaa testified that both she and Mr. Jereb had accelerated their drug use
since September 8, when Ms. Haanpaa’s ovaries were unexpectedly removed during
surgery. The couple had planned on getting married and starting a family, and they “both
kind of just lost it after that.” App. App’x, Vol. III, at 689. In the period between
September 8 and October 15, she and Mr. Jereb “started doing . . . all of the drugs that we
could get our hands on basically. If meth came around, we did it.” Id. Mr. Jereb’s
paranoia “skyrocketed” during this time. Id. at 690. For example, Ms. Haanpaa testified
that Mr. Jereb would “tweak out” over bug reports on his phone, which he suspected was
hacked, and he would tell Ms. Haanpaa that she was somebody else. Id. at 690–91.


                                             3
pulled out a sheet of heroin and started smoking it; she believes Mr. Jereb partook. Next,

she crushed some methamphetamine on a mirror and snorted it with a “tooter,” or a

rolled-up receipt. She handed the tooter to Mr. Jereb, who was about to snort the next line

when Officer Schiedel pulled up behind them.

       Ms. Haanpaa attempted to hide the drug paraphernalia, but her efforts were to no

avail. About two hours later, after investigation and questioning not relevant on appeal,

Officer Schiedel wrote drug possession citations for both Mr. Jereb and Ms. Haanpaa.

Believing Mr. Jereb was sober enough to drive back to Wyoming, Officer Schiedel told

them they were free to go. At trial, Officer Schiedel testified that he “wanted out of there

at that point.” App. App’x, Vol. III, at 355. Mr. Jereb’s erratic behavior worried him. He

was “wild eyed,” with “a real direct gaze about him,” and “it was getting to the point

where I was starting to get a little bit concerned about his demeanor towards me.” Id. at

317. When Officer Schiedel attempted to hand him his citation, for instance, Mr. Jereb

just stared into Officer Schiedel’s eyes. But the Blazer’s engine would not start, so Ms.

Haanpaa asked Officer Schiedel if he would be willing to use his patrol truck to jumpstart

it. Not wanting to leave them stranded, Officer Schiedel agreed.

       Mr. Jereb exited from the driver’s seat, put on a black leather jacket, and retrieved

jumper cables from the back of the Blazer. That concerned Officer Schiedel because the

jumper cables “seemed like a pretty good weapon.” Id. at 356. He was also concerned

that Mr. Jereb may have put on the leather jacket for the purpose of protecting himself in

the event of a fight. Nevertheless, they succeeded in jumpstarting the Blazer without



                                             4
incident. Officer Schiedel detached the jumper cables from the battery and started to

return to his patrol truck. At trial, he described what happened next:

               . . . Mr. Jereb was standing by the front right quarter panel on the
       passenger side. He looked [at] me, I would say close to my eyes but not
       really. It appeared to me that he was looking at my face or slightly above
       my eyes, not like making eye contact at this point.
               ....
               When I started to retreat back to my vehicle, he stated, you don’t
       look so good, officer, something to that effect. And I said, I feel great. I feel
       fine. He moved around the vehicle to where we were both in front of the
       red Chevy Blazer and said, again, stated, you don’t look so good. And I
       again replied, you know, I feel fine. Confusing words to me at that time.
               [Prosecutor:] What did you do after the second time the defendant
       told you you didn’t look so good?
               [Officer Schiedel:] The way my radio is positioned on my body, I
       would have reached up with my left hand and engaged the radio and stated
       my name or my call sign and asked for a backup unit at that point.
               ....
               [Prosecutor:] When you called for backup, was Mr. Jereb within a
       distance where he would have heard what you said?
               [Officer Schiedel:] Within slightly over probably an arm’s reach,
       probably within four feet of me.
               [Prosecutor:] And would you have said it loud enough so he could
       have heard?
               [Officer Schiedel:] I would have to.
               [Prosecutor:] When you called for backup, what happened?
               [Officer Schiedel:] I don’t remember anything happening on the
       radio. Our radio, there’s a beep prior to the transmission or after, and I can’t
       recall at this time, to allow you to know that that transmission has gone out.
       I don’t remember hearing anything on the radio at that point.
               [Prosecutor:] And did the defendant say something at that point?
               [Officer Schiedel:] Yes.
               [Prosecutor:] What did he say?
               [Officer Schiedel:] They’re not going to get here in time to help you.
               [Prosecutor:] Officer Schiedel, how did you take that statement from
       the defendant?
               [Officer Schiedel:] Aggressive, assaultive statement.
               [Prosecutor:] Did you have a reaction to his statement that they
       wouldn’t get there in time to help?
               [Officer Schiedel:] I did. I reached out and pushed my deployment
       button for canine Livo.

                                              5
Id. at 358–60. Officer Schiedel testified that Livo immediately came to his side. Mr. Jereb

then “made some comments to the dog, c[a]joling him, kind of trying to get him, drawing

him to him, saying what a nice dog he was and tried to get him to come to him.” Id. at

362.

       At around this time Ms. Haanpaa exited the Blazer, where she had been sitting,

and asked Mr. Jereb to return to the Blazer. According to Officer Schiedel, Livo

responded by repositioning himself in between Officer Schiedel, Mr. Jereb, and Ms.

Haanpaa, bringing him closer to Mr. Jereb than he had been previously. Mr. Jereb then

“reached out very quickly and grabbed canine Livo” by his collar, twisting it and causing

Livo to scream in pain. Id. at 368, 370–71. From there, Officer Schiedel’s recollection is

limited:

               [Officer Schiedel:] When I heard the scream, I don’t remember
       anything from that point. I have a very hard time remembering. My guess is
       I stepped forward to defend my partner.
               ....
               [Prosecutor:] Was there a physical confrontation?
               [Officer Schiedel:] I believe so, yes.
               [Prosecutor:] Tell us, walk us through, Officer Schiedel, what you
       recall transpiring after the defendant had grabbed the collar.
               [Officer Schiedel:] I have no memory from the initial contact. I
       remember from the front left quarter panel where we were standing next to
       my vehicle, I remember—my next recollection is farther from there to the
       west, which would have been towards the hillside, the next recollection that
       I have is canine Livo had Mr. Jereb down on the ground by his right
       forearm. Our dogs are bite and hold. He had bitten his right arm and was
       holding him down. And I can remember his back, and I remember thinking,
       this is probably a good place to use a Taser. I think the Taser was already in
       my hand at that point, so I deployed the Taser at that point.




                                             6
Id. at 372. Ms. Haanpaa, on the other hand, gave a somewhat different account.4

       Ms. Haanpaa was sitting in the driver’s seat when the Blazer was jumpstarted; she

turned the key in the ignition. Once the car was running, she remained in the driver’s seat

for a minute or two, waiting for Mr. Jereb, who was still outside. It was late at night and

she could not see either man from the driver’s seat, so she exited the vehicle “to go see

what was going on and why we were not leaving.” Id. at 723. She then testified as

follows:

               [Ms. Haanpaa:] I saw Aaron and the officer just standing looking at
       each other. They were talking. I couldn’t hear what they were saying
       because the Blazer was on and it is a really loud vehicle.
               [Prosecutor:] What did you see next?
               [Ms. Haanpaa:] I saw the officer say something in his radio and he
       pulled out his taser and it got crazy.
               [Prosecutor:] What is Officer Schiedel saying now?
               [Ms. Haanpaa:] Telling Aaron to get down.
               [Prosecutor:] How are you able to hear him now?
               [Ms. Haanpaa:] Because I had walked over to him. I was in front of
       the vehicle, in front of Aaron’s vehicle.
               [Prosecutor:] How many times does Officer Schiedel tell Mr. Jereb
       to get down?
               [Ms. Haanpaa:] Well, he took out his taser and tased Aaron. That
       kind of dropped him down but it didn’t completely—like he was not like on
       his back or anything. It didn’t completely like stop him. Aaron just kind of
       sat on his butt and that is when Schiedel came up to him and grabbed him
       on his shoulder and was telling him that he needs to get on his stomach and
       put his hands behind his back.
               ....
               [Prosecutor:] Can you briefly describe to the jury how Mr. Jereb is
       sitting on the ground now?
               [Ms. Haanpaa:] He is kind of sitting Indian style, but he has got his
       left leg up, so his one leg was crossed like he was sitting Indian style and
       the other leg was up just like he was posted up on his leg.

       4
           Mr. Jereb did not testify.


                                             7
              [Prosecutor:] What is Officer Schiedel saying to him?
              [Ms. Haanpaa:] He is just telling him that he needs to get his hands
        behind his back, but at that time the dog appeared out of nowhere. I don’t
        know how the dog got there, but he just—Schiedel kept telling Livo—he
        would just nod his head to the dog and the dog would bite him.

Id. at 724–25. Ms. Haanpaa testified that she witnessed Mr. Jereb’s interactions with

Livo, and she said Mr. Jereb neither touched his collar nor tried to lure him to his side.

She further testified that Mr. Jereb was Tased by Officer Schiedel before he was bitten by

Livo.

        Officer Schiedel acknowledged that he could not recall whether he drew his Taser

before or after Mr. Jereb grabbed Livo’s collar. He did recall, however, that Livo was still

biting Mr. Jereb’s right arm while he discharged the Taser onto Mr. Jereb’s back while

Mr. Jereb lay on his stomach. From there, Officer Schiedel believes he was on top of Mr.

Jereb trying to handcuff him, which proved difficult with a Taser in his left hand and

Livo attached to Mr. Jereb’s right forearm. So Officer Schiedel commanded Livo back to

the patrol truck. But Officer Schiedel still was unable to handcuff Mr. Jereb, who, free of

Livo, flipped onto his back so that the two men were on the ground, face to face. At

around this time, Officer Schiedel believes he lost his Taser to Mr. Jereb, who then used

it “against my face, my neck and maybe down my arm,” before Officer Schiedel was able

to take it back. Id. at 383–84. He estimated that he and Mr. Jereb had been on the ground

fighting for about four minutes at this point. Ms. Haanpaa testified that she never saw Mr.

Jereb with the Taser, and in fact “[t]he officer never let go of the taser, that I could see.”

Id. at 749.



                                               8
       Officer Schiedel commanded Livo to return and told him to bite and hold Mr.

Jereb again. He also used his Taser to drive Mr. Jereb back onto his stomach. Still unable

to handcuff Mr. Jereb, the fight continued:

               [Officer Schiedel:] At some point from when we were engaged on
       the left side of the vehicle just behind the driver’s side door, I remember
       Livo biting his right arm. It would have been a full mouth bite. Mr. Jereb,
       I’m assuming it was his left, it would have to be his left thumb, he was
       taking his left thumb and trying to get it into the dog’s eye. He was jabbing
       it into his eye, which I would have guessed it was to try to get the dog to
       come off the bite, to stop biting him at that point.
               THE COURT: What’s a full mouth bite?
               [Officer Schiedel:] Your Honor, when I’m referring to a full mouth
       bite, the rear of the teeth are engaging the forearm all the way. If I would
       have said frontal, it would have been the canine’s shallow on the bite. Full
       mouth bite is deep. The individual that’s being bit is going to have more
       pain response because the muscles are more powerful towards the rear of
       the jaw.
               ....
               [Officer Schiedel:] When we were—somewhere between the
       driver’s side and his door, there was, I would call it people litter. Somebody
       had taken a pile of brush up there, like thin sticks, maybe the diameter,
       large diameter to a pen or pencil, were on the ground in-between the
       pavement and the dirt itself right alongside my vehicle. Mr. Jereb was
       picking those up and stabbing the dog in his head and his neck underneath
       the collar, up underneath his throat, motions that were I would say
       consistent with if you’re using an edged weapon, trying to drive the dog off
       of him.

Id. at 396. Mr. Jereb rose, “almost to his feet,” but “Livo brought him down again with

his right forearm.” Id. at 398. Officer Schiedel then got back on top of Mr. Jereb. He held

Mr. Jereb face-down on the ground and then pepper sprayed Mr. Jereb in the face. Once

the pepper spray deployed, Officer Schiedel felt that Mr. Jereb “was not fighting me as

hard anymore to fight me but was fighting to escape.” Id. at 400. Mr. Jereb was dragging

Officer Schiedel and Livo toward a ten-to-twelve foot embankment adjoining Lambs


                                              9
Canyon Creek. Officer Schiedel and Livo disengaged, and Mr. Jereb descended to the

creek. Mr. Jereb was retrieved from the creek and taken into custody after backup

arrived.

       Tricia Hazelrigg, a firefighter and paramedic employed by the Park City Fire

Department, was summoned to the scene to assess Officer Schiedel’s injuries. But Officer

Schiedel refused assessment, and Ms. Hazelrigg did not see any obvious signs that he was

physically injured. Ms. Hazelrigg assessed Mr. Jereb instead. Mr. Jereb was cold, wet,

and shivering, having fallen or otherwise descended into Lambs Canyon Creek. His lips

were blue. He had “obvious little abrasions and superficial marks . . . all over his body,”

but “nothing that was bleeding profusely or appeared to have any great depth to it.” Id. at

781–82. Ms. Hazelrigg found Taser probes on the back side of Mr. Jereb’s leather jacket.

They did not penetrate the jacket and thus did not penetrate his skin, so they “wouldn’t

have effectively tased him.” Id. at 785.

       As for Officer Schiedel’s injuries, Officer Schiedel testified that he suffered a

“very minor” laceration on his hand and bruises on various spots on his body, including a

black eye.5 Two days after the incident, Officer Schiedel “realized that [he had] the

symptoms of a concussion” and sought medical treatment for the first time, but he says


       5
         Officer Schiedel also testified about Livo’s injuries, which he described as
“minor.” App. App’x, Vol. III, at 428. On Officer Schiedel’s account, Livo had “very
small wounds around the neck area, scruff all the way down his shoulders consistent with
the stick hits from the small sticks that Mr. Jereb picked up off the ground.” Id. He didn’t
notice any deformity or injury to Livo’s eye, and Officer Schiedel “[d]idn’t get him
assessed any more than I got myself assessed.” Id.


                                             10
his doctor informed him “the concussion was probably mostly over” at that point. Id. at

423–24. Officer Schiedel testified that he does not specifically recall being punched, but

that “[m]y head hurt and my face hurt, and I had wounds consistent with being I believe

punched in the face.” Id. at 399–400.

                                  B. Procedural History

         Less than a week after the October 15 incident, a grand jury charged Mr. Jereb

with six counts, including assault on a federal officer (in violation of 18 U.S.C.

§ 111(a)(1) and (b)), harming a law enforcement animal (in violation of 18 U.S.C.

§ 1368(a)), possession of methamphetamine, heroin and marijuana (each in violation of

21 U.S.C. § 844(a)), and possession of drug paraphernalia on National Forest System

Land (in violation of 16 U.S.C. § 551 and 36 C.F.R. 261.53(e)). The case went to trial on

April 25, 2016. A jury convicted Mr. Jereb of possessing methamphetamine, heroin, and

drug paraphernalia, but acquitted him of harming a police animal and possessing

marijuana. The jury also convicted Mr. Jereb of violating 18 U.S.C. § 111(b).

         The § 111 conviction—in particular the district court’s instructions to the jury

regarding that offense—is at the heart of Mr. Jereb’s appeal. In its entirety, that statute

reads:

         (a) In general.--Whoever--

                (1) forcibly assaults, resists, opposes, impedes, intimidates, or
                interferes with any person designated in section 1114 of this title
                while engaged in or on account of the performance of official duties;
                or




                                              11
              (2) forcibly assaults or intimidates any person who formerly served
              as a person designated in section 1114 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 where such acts involve physical contact with the victim of that
       assault or the intent to commit another felony, 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. Mr. Jereb was convicted under § 111(b), as the jury unanimously found

Mr. Jereb’s acts resulted in “bodily injury.”

       At trial, the parties disagreed on two issues regarding the § 111 jury instructions.

First, whether unanimity was required as to how the offense was committed—i.e.,

whether Mr. Jereb behaved in such a way as to assault, resist, oppose, impede, intimidate,

and/or interfere with Officer Schiedel—or whether the jury need agree merely that the

offense occurred without requiring agreement on which of § 111(a)(1)’s enumerated acts

triggered it. The district court sided with the defendant and instructed the jury that it

would need to be unanimous as to which of the § 111(a)(1) acts Mr. Jereb had committed.

A special jury instruction was prepared to that effect:

       Your verdict must be unanimous. For this first element, the Government
       does not need to prove all of these different acts—that is, forcibly assault,
       resist, oppose, impede, intimidate, or interfere—for you to return a guilty
       verdict. But to return a guilty verdict, all twelve of you must agree upon
       which of the above acts, if any, the defendant committed and that he
       committed at least one of those acts.


                                                12
App. App’x, Amended Vol. I, at 65. The district court’s jury instructions elsewhere

defined “forcibly assault” as “any intentional attempt or threat to inflict injury upon

someone else, when coupled with an apparent attempt to do so, and includes any

intentional display of force that would give a reasonable person cause to expect

immediate bodily harm, whether or not the threat or attempt is actually carried out or the

victim is injured.” It defined “forcibly oppose” as “resist by physical means.” The jury

unanimously found Mr. Jereb “forcibly opposed” Officer Schiedel, but it did not reach

unanimous agreement (to the extent it considered the question at all) as to whether Mr.

Jereb also assaulted Officer Schiedel (forcibly or otherwise).

       The second issue under dispute related to the requirement that the defendant

“forcibly” commit any of the aforementioned prescribed acts. Mr. Jereb raised that issue

in conjunction with the possibility that the jury be given a lesser-included-offense

instruction for § 111(a)’s simple assault. After further deliberation, however, Mr. Jereb

opted against seeking a lesser-included-offense instruction, and the jury was not given the

option to convict Mr. Jereb of violating § 111(a) by committing “simple assault.”

       At sentencing, the district court calculated the base offense level for the § 111

conviction using United States Sentencing Guideline § 2A2.2 (the Guideline for

aggravated assault) rather than § 2A2.4 (the Guideline for obstructing or impeding an

officer), and Mr. Jereb was sentenced as a career offender under § 4B1.2, based on two

prior convictions for Wyoming aggravated assault. See infra, n.12. The district court

imposed a sentence of seventy-two months and ordered, over Mr. Jereb’s objection,

participation in a mental health treatment plan as a special condition of supervised

                                             13
release. On appeal, Mr. Jereb initially challenged the district court’s application of the

Sentencing Guidelines as well as the imposition of mental health treatment. In his reply

brief, however, Mr. Jereb conceded that Beckles v. United States, 137 S. Ct. 886 (2017),

which was decided after the government’s answer brief was filed, forecloses his

challenges to the district court’s application of the Sentencing Guidelines. As a result,

Mr. Jereb’s objection to mandatory mental health treatment is the only sentencing issue

before us on appeal. See United States v. Pentrack, 428 F.3d 986, 991 n.4 (10th Cir.

2005) (declining to reach the merits of an argument abandoned in the appellant’s reply

brief).

                                       II.   DISCUSSION

          Mr. Jereb contends that assault is an essential element of every § 111 conviction.

Because the jury was not properly instructed as to the assault element—and because the

jury verdict form shows the jury did not find that he committed an assault—he argues he

is entitled to a new trial. Should his conviction stand, Mr. Jereb asks in the alternative

that we reverse the district court’s imposition of mental health treatment and remand for

resentencing. The remainder of this opinion proceeds in two parts. We consider first the

§ 111 conviction. Because we find no reversible error, we proceed to consider the district

court’s imposition of mental health treatment as part of Mr. Jereb’s sentence. Finding no

reversible error there, either, we affirm the district court’s judgment in full.

                                   A. The § 111 Conviction

          A district court’s decision to give or not give a particular jury instruction is

reviewed for abuse of discretion; “however, we review the instructions as a whole de
                                                 14
novo to determine whether they accurately informed the jury of the governing law.”

United States v. Sharp, 749 F.3d 1267, 1280 (10th Cir. 2014). Where a particular

objection to a jury instruction was not raised below, we review only for plain error.

United States v. Wolfname, 835 F.3d 1214, 1217 (10th Cir. 2016). Under the plain error

test, a conviction can be reversed “only if (1) an error occurred; (2) the error was plain;

(3) the error affected [the defendant’s] substantial rights; and (4) the error seriously

affected the fairness, integrity, or public reputation of a judicial proceeding.” Id. (internal

quotation marks omitted). The plain error test is inapplicable, however, in the case of

invited error. “Under the invited error doctrine, this Court will not engage in appellate

review when a defendant has waived his right to challenge a jury instruction by

affirmatively approving it at trial.” United States v. Cornelius, 696 F.3d 1307, 1319 (10th

Cir. 2012).

       Mr. Jereb’s argument for reversal focuses on the district court’s interpretation of

18 U.S.C. § 111, in particular the court’s failure to instruct the jury that assault is an

essential element necessary to support a conviction under that statute. He concedes he did

not lodge an on-point objection to the § 111 jury instruction and therefore failed to

preserve the argument he now makes on appeal. As a result, Mr. Jereb asks us to review

the district court’s jury instruction for plain error. The government, meanwhile, invokes

the invited error doctrine and asks us not to reach the merits at all. According to the

government, not only did Mr. Jereb fail to preserve his argument below, but he actually

induced the court’s error in the first place. To evaluate the government’s argument, “we



                                              15
must examine how the verdict form was proposed and approved.” See United States v.

Ellis, 868 F.3d 1155, 1169 (10th Cir. 2017).

       Before we do that, however, we pause to address a question raised by the dissent:

Does the invited error doctrine apply in this case at all? The dissent would hold that it

does not, “because a defendant cannot invite error by providing a district court settled

circuit law.” Dissent at 4 (citing United States v. Titties, 852 F.3d 1257, 1264 n.5 (10th

Cir. 2017)). We agree with the general principle. Thus, if Mr. Jereb provided the district

court “settled circuit law,” only for that settled law to be upended at some later date, the

invited error doctrine is per se inapplicable. Titties, 852 F.3d at 1264 n.5. In the dissent’s

view, this is precisely what happened when, four months after Mr. Jereb’s trial, a panel of

this court decided Wolfname. 835 F.3d 1214. Respectfully, we think the dissent is

mistaken. In Wolfname, we simply reaffirmed that “assault is an element of every

conviction under 18 U.S.C. § 111(a)(1).” 835 F.3d 1214, 1216 (10th Cir. 2016). From the

outset of that opinion, we declared that the parties’ dispute—“whether assault is an

element of every conviction under 18 U.S.C. § 111(a)(1)”—was “already answered” by

the Tenth Circuit in 2003. Id. (citing United States v. Hathaway, 318 F.3d 1001, 1007–10

(10th Cir. 2003)). We then concluded that “the district court erred in failing to instruct the

jury that to convict [defendant] . . . of resisting or interfering with an officer under

§ 111(a)(1), the jury had to find that [the defendant] assaulted that officer.” Id. That error,

moreover—the same error committed by the district court in this case—we held to be

“clear and obvious under Hathaway.” Id. The dissent argues that “we need to read

Hathaway without the benefit of later interpretations” of that opinion in cases like

                                              16
Wolfname, 853 F.3d 1214, and United States v. Kendall, 876 F.3d 1264 (10th Cir. 2017).

We disagree. In Wolfname, we squarely considered whether, under Hathaway, a district

court commits “clear and obvious” error by failing to instruct a jury that assault is an

element of a § 111(a)(1) conviction. A panel of this court answered that question in the

affirmative, and we are bound by its conclusion.6

       We now turn to the district court proceedings to determine whether Mr. Jereb

invited the error he seeks to challenge on appeal. Mr. Jereb proposed the following jury

instruction regarding the § 111 charge:

              The first element the government must prove beyond a reasonable
       doubt is that the defendant “forcibly assaulted, resisted, opposed, impeded,
       intimidated, or interfered with” a federal officer.

               Although the indictment alleges the defendant “forcibly assaulted,
       resisted, opposed, impeded, intimidated, and interfered with” a federal
       officer, it is not necessary for the government to prove the defendant did all
       those things, that is, assaulted, resisted, opposed and so forth. It is sufficient
       if the government proves beyond a reasonable doubt that the defendant did
       any of those several alternatives as charged. You must, however, be
       unanimous in your finding of which act or acts has been proven. I will
       define for you the acts specified by the statute.

       ....


       6
          Notably, Mr. Jereb concurs that the law was clear and obvious at the time of his
trial. See, e.g., Aplt. Br. at 22 (“At the time of Mr. Jereb’s trial, the circuit authority was
directly on-point, and the statute was equally clear. Assault is an essential element of any
§ 111 crime.”); Aplt. Reply Br. at 5 (“The decision in Wolfname did not change the law
of the circuit, but rather made explicit what was implicit.”). The dissent is “taken aback”
by Mr. Jereb’s concessions. Dissent at 5 n.3. It speculates that his counsel might
mistakenly believe that “to prevail he must show that the error was plain at the time of
trial,” rather than at the time of our decision on appeal. Id. It seems more plausible to us
that Mr. Jereb’s counsel simply felt bound by Wolfname’s gloss on Hathaway, as do we.


                                              17
              The phrase “forcibly oppose” means to resist by physical means.

       ....

Proposed Jury Instructions by Aaron Bradley Jereb, United States v. Jereb, No. 2:15-cr-

00610-TC-1 (D. Utah), ECF No. 38.7 At trial, the parties and the district court deliberated

over the § 111 jury instruction at some length. On appeal, both parties focus on one

particular exchange:

               THE COURT: . . . We’re meeting without the jury for a jury
       instruction conference. The attorneys are here. Mr. Jereb waived his right to
       be present. He will be here sometime around 8:00.
               How I would propose that we proceed is I will say the number of the
       instruction, and if you have an objection, say objection, and we’ll go off the
       record and try and work it out, and if not, put your objection on the record
       after I say finally what I’m going to do. If you don’t have any objection,
       just don’t say anything and I will just press on because the first ones are
       pretty much done. . . .
               ....
               THE COURT: . . . Okay. Let’s go off the record and talk about 18.
               (Discussion off the record.)
               THE COURT: Let’s go back on the record.
               18 will read that to find Mr. Jereb guilty of this crime you must be
       convinced that, and let’s put in that, that the government has proved each of
       the following elements beyond a reasonable doubt, that Mr. Jereb forcibly
       assaulted a federal officer or forcibly assaulted—where would I put it in
       really?
               [PROSECUTOR:] Your Honor, what I would recommend—
               THE COURT: Please.
               [PROSECUTOR:] —is to simply follow the statute and that we state
       Mr. Jereb forcibly assaulted, resisted, opposed, impeded, intimidated or
       interfered with.
               THE COURT: Okay.

       7
        Neither party included Mr. Jereb’s proposed jury instructions in the appellate
record. Because they are material to whether he invited error, we sua sponte supplement
the appellate record to include them. See Fed. R. App. P. 10(e)(2)(C); United States v.
Polly, 630 F.3d 991, 995 n.1 (10th Cir. 2011); see also Fed. R. App. P. 30(a)(2).


                                            18
              [PROSECUTOR:] Your Honor, I also have a Tenth Circuit case,
       2006, where the jury instruction read the defendant forcibly assaulted,
       resisted, opposed, impeded, intimidated or interfered with an officer in—
              THE COURT: In other words, just follow the language of the
       statute. Does that work?
              [DEFENSE COUNSEL:] I am fine with that.
              THE COURT: Okay. Mr. Crapo, did you get that?
              THE LAW CLERK: Yes. Forcibly assaulted and then adopt the slew
       of verbs that follow.
              THE COURT: Resisted, opposed, impeded, intimidated or interfered
       with a federal officer, and then in our next couple of instructions we have to
       make clear that the resist, opposed, impeded are all modified with forcibly.
       Okay. 18 is taken care of.

App. App’x, Vol. III, at 643, 646–47 (emphasis added). But Instruction No. 18 was not

taken care of. The government points to a second extended exchange recorded soon

thereafter:

               [DEFENSE COUNSEL:] Your Honor, at this point I am not sure if
       we want to discuss it, but as to the second element—the first element, we
       believe that the jury would have to make a unanimous finding as to which
       of those acts he committed.
               THE COURT: Yes, and that is going to reflect—we probably need
       the jury instruction that says that as well as the verdict form. Okay.
               [PROSECUTOR:] Your Honor, we take issue as to unanimity.
               ....
               THE COURT: All right. What is your response, defense?
               [DEFENSE COUNSEL:] Your Honor, I would just say, first of all, I
       think the plain language of the statute suggests that these are separate
       methods by which you could commit this crime. The title of the statute
       lists a couple of them and then the body of the statute lists a couple more.
       When I read them in a series like that and knowing that forcibly qualifies
       each of them, when I read it, I read them as you do, that they are separate
       offenses. If they are, if they are separate elements or distinguishable
       elements, I think the law requires that the jury be unanimous as to which
       element they find because it is an element of conviction.
               It is a necessary element that they find one or the other, and I don’t
       think this is the kind of case in which we have something like malice that is
       a general term that can be done in a bunch of different ways and the jury
       gets an instruction on ways it could make a finding as to one particular
       element. If we were talking about assault and the statute defined assault as

                                            19
       all these different forms of conduct, I think the government would have a
       good point, but in this case it appears that Congress has attempted to
       distinguish all the particular acts that could constitute this crime.
               ....
               [PROSECUTOR:] . . . The one thing I would add, Your Honor, is
       that the Kimes case in the Sixth Circuit talks about how having a unanimity
       instruction in 111 could make things actually more confusing for the jury
       rather than provide clarity to the jury. That was one of the reasons that they
       didn’t think it was necessary in a 111 case.
               [DEFENSE COUNSEL:] But when I think about that, you could
       have jurors back there, some of which who believe there is a resisting
       case, some of which believe there is an assault case, and he should not
       be convicted if there is a compromise or a split in terms of how they
       perceive the evidence. There should be unanimity in how they interpret
       the evidence and how he committed the crime, if he has.

Id. at 649, 652–54 (emphasis added).

       The government argues these exchanges show Mr. Jereb taking a position below

directly contrary to the position he now adopts on appeal. Mr. Jereb responds that the

government is eliding its own complicity in misreading the statute and cherry-picking

statements made by the defense counsel stripped from their proper context.8 As Mr. Jereb

tells it, trial counsel’s statements all related to two tangential disputes regarding § 111 not

relevant on appeal—i.e., whether the jury had to be unanimous about the course of

conduct Mr. Jereb undertook in violation of § 111, see id. at 649–56, and the definition of

“forcibly,” see id. at 657–68. In the midst of all the discussion regarding § 111, Mr. Jereb

stresses, the parties never explicitly addressed the purported error that is challenged on

appeal—whether assault is an essential element of a § 111(b) conviction.

       8
        In order to fairly consider Mr. Jereb’s assertion of cherry-picking, we have
quoted at some length from the trial transcript. The defense counsel statements quoted in
the government’s answer brief are in bold.


                                              20
       This case thus forces us to consider the scope of the invited error doctrine. We do

not write on a blank slate. “The invited-error doctrine prevents a party who induces an

erroneous ruling from being able to have it set aside on appeal.” United States v.

Morrison, 771 F.3d 687, 694 (10th Cir. 2014) (citation omitted). It is “based on reliance

interests similar to those that support the doctrines of equitable and promissory estoppel.”

Id. (citation omitted). “Having induced the court to rely on a particular erroneous

proposition of law or fact, a party may not at a later sta[g]e use the error to set aside the

immediate consequences of the error.” Id. (citation omitted).

       Both parties cite United States v. LaHue, a case in which numerous defendants

were tried together for conspiracy to violate the Medicare Antikickback Act and other

related crimes. 261 F.3d 993, 1001 (10th Cir. 2001). Among the defendants were two

attorneys who represented a hospital that employed several of their alleged co-

conspirators. Id. at 997. At the close of the government’s case, the district court granted

the attorneys’ motions for acquittal. Id. at 1001. The case proceeded as to the remaining

defendants and at closing argument the government stated that the acquitted “attorneys

were well aware that . . . this was a paying for patients deal and worked to develop

agreements that covered up that fact.” Id. at 1011. Defense counsel argued they should be

allowed to inform the jury the attorney defendants were acquitted. Id. at 1012. The trial

court agreed, and defense counsel took advantage of that ruling by claiming in their own

closing argument that the attorneys’ acquittal created reasonable doubt as to their clients’

guilt. Id. Apparently unpersuaded, the jury convicted four defendants of the conspiracy

charge. Id. at 1001. At least two of those defendants thereafter moved for a new trial on

                                              21
the ground that the variance between the indictment of the attorneys and the attorneys’

acquittal at the close of the government’s case substantially prejudiced them, entitling

them to a new trial. Id. at 1010. The district court denied that motion. Id. at 1011.

       On appeal those two defendants argued again that the variance between the

indictment and the attorneys’ acquittal substantially prejudiced their right to a fair trial.

Id. at 1007–10. Invoking the invited error doctrine, we affirmed the district court’s refusal

to grant a new trial because, inter alia, the defendants’ argument on appeal was “a

complete reversal from the position they sought to and did assert during closing

argument.” Id. at 1013. Because the defendants “affirmatively sought the opportunity to

argue about the acquittal of the attorney defendants, rather than object to the

government’s argument and have it stricken along with an instruction from the court for

the jury to disregard the argument,” we concluded the invited error doctrine applied and

so the defendants could not argue the opposite position on appeal. Id. at 1012–13.

       LaHue tends to support the government’s argument that the invited error doctrine

applies here. Mr. Jereb asserts that LaHue is inapposite because he “did not argue that

simple assault was not an essential element of the charge, nor did he propose any

instruction that contradicts his position on appeal.” Aplt. Reply Br. 10. But, as we have

said, Mr. Jereb proposed an instruction stating that “it is not necessary for the government

to prove the defendant . . . assaulted, resisted, opposed and so forth. It is sufficient if the

government proves beyond a reasonable doubt that the defendant did any of those several

alternatives as charged.” ECF No. 38 (emphasis added). This instruction “contradicts his

position on appeal.” Aplt. Reply Br. 10. The record further reflects that he meaningfully

                                               22
participated in crafting the jury instruction actually given at trial, which reflected the

language Mr. Jereb sought.

       Our opinions in Cornelius, 696 F.3d 1307, and United States v. Smith, 454 F.

App’x 686 (10th Cir. 2012) (unpublished), are also instructive. In those cases, two

different panels of this court considered separate appeals from the same trial, in which the

defendant-appellants (one Corey Cornelius and one Jonearl B. Smith) separately

challenged the same jury instruction, which informed the jury it need not find an

“enterprise” actually existed in order to convict for conspiracy to commit a RICO

violation. Cornelius, 696 F.3d at 1313; Smith, 454 F. App’x at 689. During deliberations

the jury propounded a question aiming to clarify whether an enterprise must exist in order

to convict for conspiracy. Cornelius, 696 F.3d at 1314. The district court responded in the

negative. Id. at 1314–15. Mr. Smith’s counsel objected to the district court’s response,

arguing the new instruction lent undue emphasis to instructions already given.9 Id. at

1315; see also Smith, 454 F. App’x at 691. Mr. Smith’s counsel requested the judge

respond to the jurors’ question simply by instructing them to reread the instructions

already received. Cornelius, 696 F.3d at 1320. When the judge asked whether the court’s

clarifying response contained a misstatement of the law or would in fact mislead the jury,

Mr. Smith’s counsel replied in the negative. Id. at 1320; see also Smith, 454 F. App’x at



       9
       Mr. Cornelius’s counsel expressly adopted the objections and positions stated by
Mr. Smith’s counsel. See United States v. Cornelius, 696 F.3d 1307, 1320 (10th Cir.
2012).


                                              23
692 (“Smith stated this proposed response did not ‘to [his] knowledge’ misstate the law.”

(quoting the record) (alteration in original)).

       Smith was decided first, and in an unpublished opinion a panel of this court

rejected the government’s invocation of the invited error doctrine. Smith, 454 F. App’x at

691–92. Because Mr. Smith “did not affirmatively urge the court to inform the jury that

an enterprise need not be established in order to convict,” the court perceived no invited

error and proceeded to the merits of Mr. Smith’s argument, which it found lacking under

the plain error test. Id. at 692–97.

       In Cornelius, a different panel saw the same facts in a different light. In that case,

we found the same argument considered on the merits in Smith “fails . . . under the

invited error rule, because Cornelius waived his right to challenge the jury instruction on

appeal by expressly endorsing it at trial.” Cornelius, 696 F.3d at 1319. We noted Smith’s

contrary holding; observing that it was not binding precedent, we proceeded to find Mr.

Cornelius’s counsel (acting through Mr. Smith’s counsel) “expressly endorsed” the

original jury instruction, which contained the statement of law attacked on appeal. Id. at

1320. By “implor[ing] the trial judge to instruct jurors to return to this now-challenged

jury instruction,” the defendant endorsed that instruction and thus invited the error he

later sought to challenge on appeal. Id.

       Cornelius, not Smith, is binding precedent, and the contrast between the holdings

in the two cases demonstrates the robustness of our invited error doctrine. Nothing on the

face of either opinion suggests defense counsel proposed or participated in the drafting of

the original jury instruction. Rather, defense counsel (1) objected to a clarifying

                                              24
instruction from the court on the ground that the original jury instructions should be

sufficient to guide the jury, and (2) replied in the negative when the judge asked whether

the clarifying instruction contained a misstatement of the law or would in fact mislead the

jury. Those actions were enough to convert the initial failure to object, a forfeiture that

would be subject to plain error review, into an invited error that precludes appellate

review. See Cornelius, 696 F.3d at 1319. In this case, Mr. Jereb did much more—he

requested (and received) jury instructions construing a statute that contradict the

construction he now prefers on appeal.

       The dissent would distinguish Cornelius on the ground that “the issue complained

of on appeal was exactly the one that the defendant had expressly adopted in the district

court,” while Mr. Jereb, by contrast, “never adopted the position that assault is not an

element of the other five methods of violating § 111(a)(1).” Dissent at 9. But the dissent’s

use of a double negative to explain Mr. Jereb’s position reflects the same rhetorical move

taken in Smith, see 454 F. App’x at 692 (“Smith did not affirmatively urge the court to

inform the jury that an enterprise need not be established in order to convict . . .”

(emphasis added)). We repudiated that position in Cornelius, see 696 F.3d at 1319, and

Smith and Cornelius are not distinguishable. They arise from identical facts, described

differently. In Smith, as in the dissent, we encounter a double negative because if the

same idea were rewritten in the affirmative, the contradiction between the position

adopted at trial and the position adopted on appeal would be apparent. But “[i]t has long

been a convention of the English Language—as with arithmetic and logic—that two

negatives make a positive.” Duquesne Light Holdings, Inc. & Subsidiaries v. Comm’r of

                                              25
Internal Revenue, 861 F.3d 396, 421 (3d Cir. 2017) (Hardiman, J., dissenting) (collecting

examples). This feature is telling—the contradiction between Mr. Jereb’s position below

and his position on appeal is real, because the underlying ideas are themselves in conflict.

And that contradiction in ideas persists regardless of the words we use to describe them.

Mr. Jereb argues that the invited error doctrine is inapplicable because he “did not argue

that simple assault was not an essential element of the charge.” Aplt. Reply Br. at 10.

What he did argue, however, directly contradicts his argument on appeal that assault is an

element of every § 111 conviction: If the jury could convict upon a unanimous finding of

one of the other means of violating the statute, it necessarily need not find assault in

every case. The dissent’s reasoning is the same reasoning that explains the outcome in

Smith. In light of Cornelius’s rejection of Smith, Cornelius controls the outcome in this

case.

        Other Tenth Circuit cases also support our conclusion that the invited error

doctrine applies in cases such as this one, where the defendant requested the jury

instruction he later challenges on appeal. In United States v. Sturm, we considered a

challenge to the district court’s jury instruction that “the mere act of observing child

pornography, without possession or receipt, is not illegal.” 673 F.3d 1274, 1280 (10th

Cir. 2012). On appeal the defendant argued, for the first time, that the failure to provide

an instruction defining the term “receives” rendered that instruction ineffective. Because

the defendant “proffered the challenged instruction himself,” his attack on the sufficiency

of that instruction was barred. Id. at 1280–81. Likewise, in this case, Mr. Jereb proffered

an instruction that he now challenges on appeal. Sturm and Cornelius teach that a

                                             26
challenge of this sort is barred.10 See also United States v. Harris, 695 F.3d 1125, 1130

n.4 (10th Cir. 2012) (“A defendant’s failure to object to a district court’s proposed jury

instruction, or even the affirmative statement, ‘No, Your Honor,’ in response to the

court’s query ‘Any objection?’, is not the same as a defendant who proffers his or her

own instruction, persuades the court to adopt it, and then later seeks to attack the

sufficiency of that instruction.”). In light of the foregoing, we hold that Mr. Jereb’s

challenge to the § 111 jury instruction is precluded by the invited error doctrine.

                    B. The Imposition of Mental Health Treatment

       “When the defendant objects to a special condition of supervised release at the

time it is announced, this Court reviews for abuse of discretion.” United States v. Bear,

769 F.3d 1221, 1226 (10th Cir. 2014). “Thus, we will not disturb the district court’s

ruling absent a showing it was based on a clearly erroneous finding of fact or an

erroneous conclusion of law or manifests a clear error of judgment.” Id. (internal

quotation marks omitted). Although we are “not hypertechnical” in requiring a district

       10
          The dissent would distinguish Sturm because, in that case, “the issue of
‘receives’ and ‘receipt’ was apparent, not hidden in a jumbled statute like 18 U.S.C.
§ 111(a)(1),” and “[s]o, unlike Jereb, Sturm had surveyed the landscape and chosen his
route.” Dissent at 10 n.9. We see two problems with this analysis. First, nothing in Sturm
indicates that Mr. Sturm or his counsel had given a moment’s thought to how (or
whether) “receipt” should be defined for the jury. The dissent postulates that Mr. Sturm
“chose to deal with this known issue by informing the jury that observing child
pornography without possession or receipt is not illegal.” Id. But the instruction left
“receipt” undefined. We have no idea whether that omission was a tactical decision or a
failure to consider the issue at all. Second, as we have already explained, the record in
this case makes clear that Mr. Jereb, through his counsel, thought strategically about how
he wanted § 111 to be defined. In fact, as the dissent notes, in securing a favorable
unanimity instruction he “did better than he should have.” Id. at 8 & n.6.


                                             27
court to explain why it imposed a particular condition of supervised release, we do

require “at least generalized reasons” so that we can conduct a proper review. United

States v. Martinez-Torres, 795 F.3d 1233, 1236, 1238 (10th Cir. 2015).

       District courts enjoy broad discretion to order special conditions of supervised

release, including mandatory mental health treatment. See 18 U.S.C. §§ 3583(d),

3563(b)(9). Section 3583(d) limits the district court’s exercise of that discretion,

however, in three ways. First, the special condition must be “reasonably related to the

factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D).” See 18 U.S.C.

§ 3583(d)(1). Second, the condition must involve “no greater deprivation of liberty than

is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and

(a)(2)(D).” See 18 U.S.C. § 3583(d)(2). By cross-referencing § 3553, we understand

§ 3583(d)(1) and (2) to mean that any special condition must be reasonably related to at

least one of the following four factors and involve no greater deprivation of liberty than is

reasonably necessary to effectuate the purposes of the latter three factors:

        the nature and circumstances of the offense and the history and characteristics
         of the defendant, see id. § 3553(a)(1);

        the need to afford adequate deterrence to criminal conduct, see id.
         § 3553(a)(2)(B);

        the need to protect the public from further crimes of the defendant, see id.
         § 3553(a)(2)(C); and

        the need to provide the defendant with needed educational or vocational
         training, medical care, or other correctional treatment in the most effective
         manner, see id. § 3553(a)(2)(D).




                                             28
See United States v. Barajas, 331 F.3d 1141, 1146–47 (10th Cir. 2003) (holding that

while the district court should consider each § 3553(a) factor, a special condition need

not be reasonably related to all of the factors so long as it is reasonably related to at least

one). The third way in which § 3583(d) cabins the district court’s exercise of discretion is

that the special condition must be consistent with any pertinent policy statements issued

by the Sentencing Commission. See 18 U.S.C. § 3583(d)(3). This latter test is clearly met

in this case, as the Sentencing Guidelines affirmatively recommend a defendant be

required to participate in a mental health program approved by the United States

Probation Office if the court “has reason to believe that the defendant is in need of

psychological or psychiatric treatment.” See USSG § 5D1.3(d)(5); see also Barajas, 331

F.3d at 1145.

       Our analysis will proceed as follows: First, we consider the district court’s

explanation for imposing mental health treatment as a special condition of supervised

release and its related findings. Second, we examine whether imposing mental health

treatment is reasonably related to any of the § 3553(a) factors enumerated above. See 18

U.S.C. § 3583(d)(1).11




       11
          Mr. Jereb does not argue mental health treatment imposes a greater deprivation
of liberty than is reasonably necessary for the purposes of deterrence, protecting the
public, and/or rehabilitation. Therefore, we do not address whether the district court
abused its discretion under 18 U.S.C. § 3583(d)(2).


                                              29
1.     Did the district court adequately explain its reasons for imposing mental
       health treatment such that this court can conduct a proper review?

       The district court must “provide at least generalized reasons for imposing special

conditions of supervised release.” Martinez-Torres, 795 F.3d at 1236. But we are “not

hypertechnical in requiring the court to explain why it imposed a special condition of

release.” Id. at 1238. A statement of generalized reasons is enough, provided the district

court’s explanation is sufficient to allow proper appellate review. Id.

       Upon Mr. Jereb’s objection at sentencing, the district court explained its reasoning

for requiring mental health treatment:

       I’m going to put that still as a condition. Mr. Jereb is very stoic. Something
       has caused Mr. Jereb to go off the rail at times. I think it’s not just drugs. I
       think there is something underlying. I don’t know whether it’s in the fact
       that—I don’t know what. I’m not a psychologist. But I think that you could
       benefit. And if your probation officer doesn’t think you need it, he won’t or
       she won’t advise it.

App. App’x, Vol. III, at 95–96. On appeal Mr. Jereb zeroes in on this explanation in

response to his objection and argues that it is insufficient. Stoicism, he says, is consistent

with judicial expectations of courtroom decorum, and so the district court’s explanation is

unsatisfying. Taken in isolation the above-quoted explanation in response to Mr. Jereb’s

objection probably would not allow for meaningful appellate review. See Martinez-

Torres, 795 F.3d at 1238.

       Mr. Jereb oversteps, however, because the above-quoted passage was not the only

explanation given by the district court. Earlier in the sentencing hearing, the district court

had the following exchange with the prosecutor:



                                              30
               [PROSECUTOR:] . . . [S]omething of great concern to us is the PSR
       paragraph 68 that he has no desire for treatment.
               THE COURT: I know. Despite your wishes, Mr. Jereb, I’m going to
       recommend treatment. You are free to refuse it. But I think you do need it.
       But you are the controlling person. I know [the Bureau of Prison’s
       Residential Drug Abuse Program] isn’t going to take you if you don’t want
       to go. I certainly think that might help.
               [PROSECUTOR:] That plays into another concern of ours, which
       we actually think the Court can take this into consideration for a departure
       as well, but, again, it raises a heightened concern to us is PSR paragraph
       6[8], he doesn’t feel he needs mental health treatment. Counsel again has
       referred to diminished capacity. I think it would be extremely important for
       him to get a psychiatric evaluation, psychological, psychiatric evaluation,
       neuropsychological evaluation. His history, especially I think he started out
       in juvenile court or some type of juvenile offender thing at 13, and I believe
       he was raised by his grandparents.
               THE COURT: Here’s a question and I’m going to ask it. I won’t be
       asking Mr. Jereb, but I’m going to ask [defense counsel]. He said he had
       loving grandparents and no problems. Yet here he is, early on, going off the
       rails.
               [PROSECUTOR:] That’s what brings me back to the question of his
       mental health.
               This has been a case that we have agonized over, Your Honor. We
       want to be fair. We want to be appropriate in our recommendations.
               ....
               THE COURT: . . . I think you would benefit and I think society
       would benefit if you could get out of this enjoying drugs and going on your
       binges. And I think mental health counseling is also an important
       consideration. You lose your temper, and that’s exacerbated when you have
       been using drugs.

App. App’x, Vol. III, at 75–76, 92–93. The court then ordered Mr. Jereb to “[p]articipate

in a mental health treatment program under a co-payment plan” and “[t]ake any

medications that are prescribed for mental health” as part of his sentence. Id. at 94.

Together with the district court’s response to Mr. Jereb’s objection, these excerpts of the

sentencing transcript relay the full extent of the district court’s explanation for imposing

mental health counseling. Mr. Jereb says it is not enough. He asserts the district court


                                             31
“did not connect the dots between the special condition of mental health treatment and

any of the factors identified in § 3583(d).” Aplt. Br. at 40. That much is true. The district

court did not connect the special condition of mental health treatment to the § 3583(d)

factors, at least not explicitly.

       Still, it is possible to glean the factors the district court considered from careful

examination of the record. In response to the government’s recommendation that Mr.

Jereb receive a mental health evaluation, the district court acknowledged that Mr. Jereb

was “going off the rails” “early on” in his life. Considering that comment, together with

the district court’s observation of Mr. Jereb’s demeanor in the courtroom (his stoicism),

we can infer the district court believed mental health counseling was reasonably related

to Mr. Jereb’s “history and characteristics.” See 18 U.S.C. § 3553(a)(1).

       We can also infer the district court believed mental health treatment was

reasonably related to protecting the public. See App. App’x, Vol. III, at 92–93 (“I think

you would benefit and I think society would benefit if you could get out of this enjoying

drugs and going on your binges. And I think mental health counseling is also an

important consideration. You lose your temper, and that’s exacerbated when you have

been using drugs.”). In finding Mr. Jereb’s tendency to lose his temper is “exacerbated”

by his drug use, the district court signaled that it viewed Mr. Jereb’s temper as a problem

distinct from his drug habit and thus something that mental health counseling could

potentially address.

       Other record sources provide further context for the district court’s comments at

the sentencing hearing. The Presentence Investigative Report (“PSR”) details Mr. Jereb’s

                                              32
history of violent behavior,12 which the district court equated to “going off the rails.” The

district court found no ready explanation for this behavior in light of the representation in

the PSR that Mr. Jereb was raised by loving grandparents. It is thus fair to infer the

district court deemed mental illness the likely explanation for Mr. Jereb’s repeated

incidents of “going off the rails.” To be sure, the PSR states that Mr. Jereb has never been

under the care of mental health professionals and it did not recommend mental health

treatment. The PSR also reports Mr. Jereb denied any past or present thoughts of suicide

and Mr. Jereb does not believe he is in need of mental health counseling. But the district

court was free to view Mr. Jereb’s demeanor and history of violent outbursts as

suggestive of underlying mental health issues unrecognized by Mr. Jereb and, as yet,

undiagnosed by a medical professional.

       12
           According to the Presentence Investigation Report (“PSR”), in 1998, when Mr.
Jereb was sixteen years old, he was arrested for, charged as an adult, and later convicted
of felony aggravated assault. Mr. Jereb drove his truck through a crowd of people,
striking six of them and completely running over a female victim. Mr. Jereb continued
forward and slammed into another truck containing four individuals.
        In 2005, when Mr. Jereb was twenty-three years old, he was again arrested for and
later convicted of felony aggravated assault. This time Mr. Jereb, drinking with his victim
at a bar, continually asked the victim to go outside and fight him. After the victim obliged
and Mr. Jereb and the victim stepped outside, Mr. Jereb hit the victim. After a witness
told them to stop fighting, Mr. Jereb, the victim, and the witness got into a vehicle and
drove to a remote location to continue the fight. Mr. Jereb then stabbed his victim. The
victim tried to run away but fell, at which time Mr. Jereb climbed on top of him and
stabbed him again in the chest. The victim and Mr. Jereb continued to fight and the
victim was stabbed again in the stomach. The victim managed to get the knife away from
Mr. Jereb and pinned him down. Officers then arrived at the scene, and the victim stated
that during the assault Mr. Jereb told him, “die mother fucker.”
        In 2006, when Mr. Jereb was twenty-four years old and incarcerated, he was
convicted of simple assault and battery after correctional officers witnessed him throwing
punches at another inmate’s face.


                                             33
       Although the record could be clearer, we conclude the district court provided an

adequate explanation of “generalized reasons” sufficient to enable us to conduct a proper

review. The transcript of the sentencing hearing shows the district court considered Mr.

Jereb’s temperament in court, his upbringing, his proclivity for losing his temper, and his

propensity for going “off the rails,” when choosing to make mental health treatment a

condition of supervised release. We see little merit in remanding for the purpose of

explicitly “connect[ing] the dots,” Aplt. Br. at 40, between mental health treatment and

the § 3583(d) factors, when the district court has already said enough to enable us to

conduct that elementary task. See United States v. Hahn, 551 F. 3d 977, 983 (10th Cir.

2008) (rejecting claim that district court did not provide sufficient reasons for imposing

special sex offender conditions where the district court explained they were being

imposed based on “the history and characteristics of the defendant” and the recency of

the defendant’s sexual crimes).

2.     Is the imposition of mental health treatment reasonably related to at least one
       of the statutory factors?

       On appeal, the government does not argue mental health treatment is reasonably

related to either deterrence, 18 U.S.C. § 3553(a)(2)(B), or rehabilitation, id.

§ 3553(a)(2)(D). Instead, the government contends the special condition is reasonably

related to Mr. Jereb’s history and characteristics, id. § 3553(a)(1), and protecting the

public, id. § 3553(a)(2)(C). Because we conclude the special condition is reasonably

related to Mr. Jereb’s history and characteristics, we do not consider the government’s

argument that it is also related to protecting the public.


                                              34
       The government argues mental health treatment is reasonably related to Mr.

Jereb’s history and characteristics as well as the § 111 offense for which he was

convicted. For his part, Mr. Jereb takes umbrage with the government’s suggestion that

“there is often a link between mental illness and violent conduct,” calling it an

inflammatory assertion devoid of any support.13 But in fact we have previously held a

defendant’s “long record of violent incidents” can support a conclusion that mental health

counseling is appropriate. See Barajas, 331 F.3d at 1147. Other courts of appeals are in

accord. See United States v. Lopez, 258 F.3d 1053, 1057 (9th Cir. 2001) (finding that the

record “amply supports the district court’s belief that [defendant] needed mental health

counseling,” where, inter alia, the district court “observed [defendant] in his appearances

and” the defendant “had a history of violent criminal behavior”); United States v. Bull,

214 F.3d 1275, 1278 (11th Cir. 2000) (finding district court did not abuse its discretion in

requiring mental health treatment where presentence report indicated defendant had prior

convictions for domestic battery and was involved in other incidents involving threats or

violence); but see United States v. Pruden, 398 F.3d 241, 249 (3d Cir. 2005) (“[A] long

criminal history . . . alone cannot demonstrate a need for mental health treatment—for if

it did, virtually any repeat offender could be required to undergo such treatment.”).




       13
          Mr. Jereb notes the government’s “inflammatory” argument was not raised at
sentencing, but he advances no argument as to why that is relevant. As always, we are
free to affirm on any ground adequately supported by the record. See Tooele Cty. v.
United States, 820 F.3d 1183, 1191 (10th Cir. 2016).


                                             35
       And there is evidence aplenty in the record establishing Mr. Jereb’s history of

violent criminal behavior. See supra, n.12. Although not needed under Barajas, the

record also supports the district court’s finding of something amiss in Mr. Jereb’s mental

state. At trial, Officer Schiedel testified that Mr. Jereb’s behavior leading up to the fight

was unusual, marked by “wild eyed” stares and unexplained silences.14 And Ms. Haanpaa

testified that Mr. Jereb’s paranoia “skyrocketed” during the relevant period, sometimes

causing him to believe she was someone else. App. App’x, Vol. III, at 690–91. Of course

the district court also had its own opportunity to observe Mr. Jereb in court throughout

the four days of trial. The district court explicitly took its own observations into account

in fashioning its sentence, as it was permitted to do. See Lopez, 258 F.3d at 1057 (holding

the record amply supported the need for mental health counseling where, inter alia, the

district court observed the defendant in his appearances).

       In arguing the district court abused its discretion, Mr. Jereb relies principally on

United States v. Majors, an unpublished opinion in which we reversed the imposition of

mental health treatment as a condition of supervised release where there was no evidence

that the defendant was in need of such treatment. See 426 F. App’x 665, 669 (10th Cir.

2011). But Majors is not precedential and it is distinguishable because the defendant in

that case was not convicted of a violent crime and the record showed no history of violent

behavior. Id.at 666, 669. Where, as here, the record demonstrates a track record of violent


       14
         At the sentencing hearing, the district court repeatedly stated that it found
Officer Schiedel to be a credible witness.


                                              36
behavior, a district court does not abuse its discretion in finding mental health treatment

reasonably related to the defendant’s history and characteristics. See Barajas, 331 F.3d at

1147 (“Defendant’s long record of violent incidents supports the district court’s

conclusion that Defendant needed mental health treatment.”). As Mr. Jereb himself notes,

a defendant cannot be caught off guard by a court’s decision to require mental health

counseling when the PSR contains extended descriptions of violent behavior.

       We hold that the district court did not abuse its discretion in finding mental health

treatment reasonably related to the nature and circumstances of the offense as well as Mr.

Jereb’s history and characteristics. Because mental health treatment is reasonably related

to 18 U.S.C. § 3553(a)(1), it is not necessary for it to also be reasonably related to any of

the other statutory factors and we do not consider them. See Barajas, 331 F.3d at 1146.

                                              *

       We affirm the imposition of mental health treatment as a special condition of

supervised release. The district court provided an explanation adequate for this court to

conduct a proper review. Upon conducting that review, we conclude the district court did

not abuse its discretion in finding mental health treatment reasonably related to Mr.

Jereb’s history and characteristics as well as the circumstances of the offense.

                                   III. CONCLUSION

       For the foregoing reasons, we AFFIRM Mr. Jereb’s conviction and sentence.




                                             37
United States v. Jereb, No. 16-4127

PHILLIPS, J., concurring and dissenting.

       I agree with the majority’s disposition of the supervised-release issue. But I

disagree with its applying the invited-error rule to defeat Jereb’s meritorious plain-error

argument concerning the disputed jury instruction.

                                        Plain Error

       On appeal, Jereb challenges his conviction for forcibly opposing1 a federal officer

acting in the course of his duties, as charged under 18 U.S.C. § 111(a)(1), (b).2 With the

parties’ assent, the district court instructed the jury on what the parties and court thought

were the elements of the crime. Unsurprisingly, the instruction tracked the statute, which

forbids “forcibly assault[ing], resist[ing], oppos[ing], imped[ing], or interfer[ing]” with a

federal officer. See 18 U.S.C. § 111(a). In accordance with the practice in our circuit, the


       1
        The Judgment states that the jury found Jereb guilty of “Assault on a Federal
Officer.” R. vol. 1 at 145. The jury left blank the spaces on the special-verdict form by
which it could have found that Jereb had forcibly assaulted, forcibly resisted, forcibly
impeded, forcibly intimidated, or forcibly interfered with the officer. Id. at 98.
       2
          In recounting the jury’s findings, the majority says that “[t]he jury also convicted
Mr. Jereb of violating 18 U.S.C. § 111(b).” Maj. op. at 1. Because the government
contends in its brief that subsection (b) is a stand-alone crime, I think we should clarify
that the government in fact correctly charged the crime under 18 U.S.C. § 111(a)(1), (b),
that is, that a conviction under § 111(b) requires proof of the elements contained in both
subsections. If we don’t, then we encourage the government to continue arguing this
same point in future cases—relying on dicta arguments and the like. See Appellant’s Br.
at 27–33. I recognize that United States v. Kendall, 876 F.3d 1264, 1265 (10th Cir. 2017),
referred to a “conviction under 18 U.S.C. § 111(b),” but I view this as a shorthand
reference. After all, Kendall looked back to § 111(a)(1)’s six methods before declaring
that assault is a required element of an enhanced penalty under subsection (b). Id. at
1270.
district court did not additionally instruct the jury that forcibly resisting, opposing,

impeding, intimidating, or interfering with a federal officer required concomitant proof of

an assault. But after Jereb’s trial, our circuit began requiring that the government prove

assault in addition to proving any of the other five listed acts. See United States v.

Kendall, 876 F.3d 1264, 1270 (10th Cir. 2017) (acknowledging that “one can violate

§ 111 in a number of ways” and concluding that “every conviction under § 111 requires

an assault”); United States v. Wolfname, 835 F.3d 1214, 1218 (10th Cir. 2016)

(“[b]ecause a § 111(a)(1) conviction for resisting, opposing, impeding, intimidating, or

interfering must fall into one of . . . two categories [simple assault or “all other cases”

assault,] a conviction for any of these acts necessarily involves—at a minimum—simple

assault.”). Though we decided Kendall and Wolfname after Jereb’s trial, he gets the

benefit of those rulings because his case is on direct appeal. Griffith v. Kentucky, 479

U.S. 314, 328 (1987).

       Because Jereb did not object on the ground that the jury needed to find that he

assaulted the officer in addition to forcibly opposing him, we review this legal challenge

for plain error. Under the plain-error standard, Jereb must establish that “(1) an error

occurred; (2) the error was plain; (3) the error affected [his] substantial rights; and (4) the

error seriously affected the fairness, integrity, or public reputation of a judicial

proceeding.” Wolfname, 835 F.3d at 1217 (quoting United States v. Makkar, 810 F.3d

1139, 1144 (10th Cir. 2015)).

       Here, Jereb easily satisfies the first two prongs of the analysis. Under Kendall, the

district court plainly erred by not requiring the jury to find that Jereb had assaulted the

                                               2
federal officer in addition to opposing him. See Kendall, 876 F.3d at 1270 (citing

Wolfname, 835 F.3d at 1218). At the third prong, Jereb should also prevail. To show

substantial prejudice, he “must demonstrate ‘a reasonable probability that but for the

error claimed, the result of the proceeding would have been different.’” United States v.

Hill, 749 F.3d 1250, 1263 (10th Cir. 2014) (quoting United States v. Trujillo-Terrazas,

405 F.3d 814, 819 (10th Cir. 2005)). The jury declined to find that Jereb had assaulted the

officer. Thus, had the district court properly instructed the jury, the government

necessarily would have failed to show that Jereb assaulted the officer in addition to

opposing him.

       Finally, at the fourth prong, we have discretion to notice the forfeited error. United

States v. Olano, 507 U.S.725, 736 (1993) (“The Court of Appeals should correct a plain

forfeited error affecting substantial rights if the error ‘seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.’” (alteration in original) (quoting

United States v. Atkinson, 297 U.S. 157, 160 (1936))). Though we will not always notice

the error resulting from failing to instruct the jury on an essential element of the crime,

“we have before noted that reversal is appropriate when evidence supporting the omitted

element is ‘neither overwhelming nor uncontroverted.’” United States v. Benford, 875

F.3d 1007, 1021 (10th Cir. 2017) (quoting Wolfname, 835 F.3d at 1223). Here, as stated,

the evidence is the opposite of overwhelming—the jury declined to find that Jereb had

assaulted the federal officer. For those reasons, I would conclude that Jereb has met his

burden under the plain-error standard and deserves reversal of his 18 U.S.C. § 111(a)(1),

(b) conviction.

                                                3
                                        Invited Error

       For two reasons, I disagree with the majority’s view that Jereb invited the error

identified above.

       First, at the time of Jereb’s trial, the settled law and pattern jury instruction in our

circuit favored the instruction the parties offered. Before Wolfname, which we decided

four months after Jereb’s trial, our circuit had treated each of the listed ways of violating

§ 111 (the defendant “forcibly assaults, resists, opposes, impedes, intimidates, or

interferes with” the federal officer) as “assault” in applying the penalty. See, e.g., United

States v. Sherwin, 271 F.3d 1231, 1233 (10th Cir. 2001) (referring to a charge under

§ 111(a)(1), (b) with the six methods of committing the crime as “one count of assaulting

federal officers”); United States v. Afflerbach, 754 F.2d 866, 868–69 (10th Cir. 1985)

(affirming a conviction for “forcibly interfering with a federal officer without the use of a

deadly weapon,” apparently without a jury finding that the defendant had assaulted the

federal officer while interfering with him); United States v. Linn, 438 F.2d 456, 458 (10th

Cir. 1971) (affirming a conviction, apparently without a special verdict, on a charge

listing all six methods of committing the offense and commenting that “[o]ne of the

elements of the offense proscribed by § 111 is that the federal officer assaulted be

engaged in the performance of his official duties and not on a frolic of his own”); Taylor

v. United States, 334 F.2d 386, 388 (10th Cir. 1964) (affirming a conviction, apparently

with no special verdict, on a charge listing all six methods of committing the offense and

generally describing the offense as assault).



                                                4
       This matters because a defendant cannot invite error by providing a district court

settled circuit law. See United States v. Titties, 852 F.3d 1257, 1264 n.5 (10th Cir. 2017).

The question thus becomes whether any authority unsettled this law before Jereb’s trial.

The government contends that United States v. Hathaway, 318 F.3d 1001 (10th Cir.

2003), did so.3 I disagree.

       In evaluating whether Hathaway changed the settled law in our circuit on the

concomitant-assault issue, we need to read Hathaway without the benefit of later

interpretations of it in Wolfname and Kendall. By backing the analysis to the time of

Jereb’s trial, and not fast-forwarding to Wolfname, a different picture emerges. If relying

just on Hathaway, contemporary readers would have seen that the government charged

that Hathaway “did knowingly and intentionally forcibly assault, resist, oppose, impeded

[sic], intimidate, and interfere with” a federal officer. Id. at 1004. They would also have

seen that Hathaway characterized the conviction as “a single count of forcibly assaulting

a federal officer in violation of 18 U.S.C. § 111(a).” Id. at 1003. And they would have


       3
         I admit to being taken aback that Jereb takes the same view. Appellant’s Br. at
22. Jereb appears to believe that to prevail he must show that the error was plain at the
time of trial. Id. (“At the time of Mr. Jereb’s trial, the circuit authority was directly on
point, and the statute was equally clear.”). If so, then he is mistaken. New rules apply
retroactively to cases pending on direct appeal. Griffith, 479 U.S. at 328. In any event, I
disagree with the parties’ view of Hathaway for the reasons given above. And I note that
if Hathaway had required assault as an element of the other five acts, then the jury would
have had to find this element beyond a reasonable doubt. See Patterson v. New York, 432
U.S. 197, 215 (1977) (“[Mullaney v. Wilbur, 421 U.S. 684 (1975),] surely held that a
State must prove every ingredient of an offense beyond a reasonable doubt, and that it
may not shift the burden of proof to the defendant by presuming that ingredient upon
proof of the other elements of the offense.”). But I see nothing suggesting that the jury
found this element, or any showing of overwhelming proof of the missing element. Cf.
United States v. Mann, 786 F.3d 1244, 1251–52 (10th Cir. 2015).
                                             5
seen that the court nowhere said that the five non-assault statutory methods of

committing the crime required assault. Instead, they would have seen that the court

simply went along with Mr. Hathaway’s desire to retain his misdemeanor-assault

conviction, once the court had concluded that the government had not proved felony

assault. See id. at 1010. Finally, they would have seen that Hathaway neither mentioned

nor explained language from the Supreme Court bearing on the possibility of a

concomitant-assault requirement (further suggesting, to me, that Hathaway wasn’t

deciding that issue). In United States v. Feola, 420 U.S. 671, 682 n.17 (1975), the Court

noted that 18 U.S.C. § 111 “outlawed more than assaults. It made it a criminal offense

‘forcibly [to] resist, oppose, impede, intimidate, or interfere with’ the named officials

while in the performance of their duty.”

       In mentioning these points, I seek just to show that invited error is strong medicine

to administer when Jereb (and the government and district court) could have reasonably

believed—if ever contemplating it—that Hathaway did not require the government to

prove concomitant assault as part of proving each of the five non-assault-specific

statutory means of committing the crime.

       I acknowledge that four months after Jereb’s trial, the court in Wolfname culled

from Hathaway an “implicit” holding that assault must be proved as part of any

conviction under § 111(a)(1). 835 F.3d at 1218 (adding that “[t]rue, we didn’t explicitly

state in Hathaway that the government must prove assault when it alleges a defendant

violated § 111(a)(1) by resisting, opposing, impeding, intimidating, or interfering with—

rather than assaulting—an officer”). But for the reasons given, I believe that at the time

                                              6
of Jereb’s trial, Hathaway reasonably could have been read as being consistent with the

long line of Tenth Circuit cases cited above, which affirmed § 111 convictions without

jury findings of assault. In fact, Hathaway offers the government even less help than do

those earlier cases; after all, the defendants in those cases, unlike Mr. Hathaway, were not

advocating for an assault conviction.

       So whatever the merits of Wolfname’s interpretation of Hathaway, I think the

proper question is whether, in fairness, we can apply the invited-error doctrine here on

grounds that Hathaway had obviously held that all § 111(a)(1) convictions require a jury

finding of assault. In my view, transporting Wolfname’s interpretation of Hathaway back

in time to Jereb’s trial is unfair. Under pre-Wolfname law, the instructions given here

were correct.4 Invited error should not have a hair trigger activated by Jereb’s failure to

anticipate that Wolfname would find an implicit holding in Hathaway mandating an

additional instruction requiring the government to prove assault as part of proving the

five non-assaultive methods, including “opposing.” I can’t see how Jereb invited error by

offering our approved pattern jury instruction on the elements of § 111(a)(1), (b).




       4
         In fact, the § 111 instruction (found at section 2.09 of the Tenth Circuit Pattern
Jury Instructions) has remained the same from its 2011 version through the 2017
amendments to the pattern instructions. Though the commentary to the pattern instruction
discusses Hathaway—specifically, the holding that § 111 creates the three separate
crimes—it does not mention any change by which the government has to prove assault as
part of proving any of the means of violating the statute.

                                              7
       Second, I disagree with the majority that Jereb induced the district court to err.5

See maj. op. at 24–25. The majority points to the instruction Jereb offered as well as the

one given to the jury with his assent. As mentioned, Jereb wanted the instruction because

it required jury unanimity for at least one of the methods of violating § 111(a)(1).6 That

was his sole focus. Jereb obviously overlooked the possibility that the statute required the

government to prove assault as part of the five otherwise-non-assaultive methods of

committing the crime (any such requirement is hardly obvious from reading § 111, and

that poorly drafted statute requires considerable straining to read it sensibly to any

conclusion). Common sense tells me that Jereb didn’t intentionally relinquish that

argument. After all, he had every reason to add elements, especially tough-to-prove ones

like assault. So I see forfeiture, not waiver. See Olano, 507 U.S. at 733.

       In concluding that Jereb invited the error he now complains of, the majority relies

on United States v. Cornelius, 696 F.3d 1307 (10th Cir. 2012). See maj. op. at 23. And

indeed Cornelius says that “[u]nder the invited error doctrine, this Court will not engage


       5
          In my view, including inadvertent acts as inducements stretches “induce” beyond
its meaning. See Oxford English Dictionary (online ed. 2018) (defining induce as “To
lead (a person) by persuasion or some influence or motive that acts upon the will, to (into,
unto) some action, condition, belief, etc.; to lead on, move, influence, prevail upon (any
one) to do something.”). I see nothing suggesting that Jereb induced the district court not
to give a separate instruction requiring concomitant assault for each of the five other
methods of committing the crime. No one contemplated that question. Again, the
instructions given are correct (and remain in the current pattern jury instructions); they
are just incomplete after Wolfname and Kendall.
       6
        In fact, Jereb did better than he should have on this point. As later announced in
Kendall, 876 F.3d at 1269, the six methods are not elements but instead are means. So
Jereb was not entitled to jury unanimity on any particular one of the statutory methods.

                                              8
in appellate review when a defendant has waived the right to challenge a jury instruction

by affirmatively approving it at trial.”7 696 F.3d at 1319. From this, the majority looks to

the disputed jury instructions, and it notes that Jereb affirmatively approved them. Maj.

op. at 17–20. But the problem with this view is evident when we compare Jereb’s case to

Cornelius. In Cornelius, the issue complained of on appeal was exactly the one that the

defendant had expressly adopted in the district court—namely, that enterprise is not an

element of a RICO conspiracy charge. 696 F.3d at 1319–21. Here, by contrast, Jereb

never adopted the position that assault is not an element of the other five methods of

violating § 111(a)(1).

       The majority also relies on United States v. LaHue, 261 F.3d 993 (10th Cir. 2001).

See maj. op. at 21-23. That case is similar to Cornelius in its differences from Jereb’s

case. In LaHue, as the majority recounts, defense counsel argued that the government had

opened the door for them to mention in closing argument that the defendant-attorneys

allegedly involved in the charged scheme had been acquitted. 261 F.3d at 1012. After the

court agreed, defense counsel argued that the acquittals undermined the government’s

case against their clients. Id. After the jury convicted, though, defense counsel argued on

       7
         Later opinions also written by Judge Ebel help explain the boundaries of
Cornelius. In United States v. Thornton, 846 F.3d 1110, 1117 & n.3 (10th Cir. 2017), the
court declined to find invited error where a defendant had challenged a prison sentence
whose lengthier term was motivated by treatment available in prison—even though the
defendant had argued in the district court that he would be less dangerous to the public
because of available prison treatment. The court clarified the meaning of invited error:
“Invited error occurs when the party sought out or ‘affirmatively approv[ed]’ an errant
outcome.” Id. at 1117 n.3 (alteration in original) (quoting Cornelius, 696 F.3d at 1319).
The court called invited error a species of waiver “because it requires intentional
relinquishment of a right.” Id. at 1117 n.3 (citing United States v. Rodebaugh, 798 F.3d
1281, 1304 (10th Cir. 2015)).
                                             9
appeal that the district court had erred by giving them what they wanted—specifically,

they argued that by telling the jury about the defendant-attorneys’ acquittal, the district

court might have caused the jurors to wonder why the court had acquitted the attorneys

but not the other defendants. Id. Unsurprisingly, we ruled that the invited-error doctrine

applied in this circumstance. Id. at 1013. We found no prejudice, “because defendants’

argument on appeal is a complete reversal from the position they sought to and did assert

during closing argument.” Id. This makes sense, because the defendants in LaHue had

consciously decided to seek the very result they later complained about. By comparison,

nothing suggests that Jereb induced the district court to commit the error of which he

complains on appeal. Not foreseeing that the law would soon make the given instructions

incomplete is a far different matter from spotting the incompleteness, seeking to take

advantage of it in the district court, and when that didn’t work out, reversing position on

appeal.8

       In my view, the majority has extended the invited-error doctrine beyond where we

have previously applied it.9 Until today, I see no cases imposing invited error on a


       8
         One case that Titties relied on in its invited-error discussion is Ray v. Unum Life
Insurance Co., 314 F.3d 482 (10th Cir. 2002). See Titties, 852 F.3d at 1264 n.5. As do I,
Ray considers it important to ask whether the party has switched to a directly contrary
position on appeal. In Ray, “the parties had assumed in the district court that one legal
standard applied, but the law changed after appellate briefing.” Id. (citing Ray, 314 F.3d
at 486). Ray says it well: “There is no evidence that on appeal Ray reverses a position she
took at trial or that Ray induced the district court to apply an arbitrary and capricious
standard; we do not see in the record even the slightest debate about which standard of
review is appropriate.” 314 F.3d at 486.
       9
        The closest case to doing so that I see is United States v. Sturm, 673 F.3d 1274
(10th Cir. 2012). In that case, the district court instructed the jury on the defendant’s
                                             10
defendant who had proceeded in accordance with our cases and pattern jury instructions,

even where cases decided afterward declare that approach erroneous. The majority’s rule

goes too far, especially when plain error is evident. Unlike the defendants in the

majority’s cited cases, Jereb did not argue a legal position to seek a favorable result in the

district court and later reverse his position to seek an advantage on appeal. From the

outset, Jereb would have been much better off had he spotted the issue he now advances.




theory of the case—using the instruction proposed by the defendant. Id. at 1280. Under
the defendant’s instruction, the court instructed the jury that “the mere act of observing
child pornography, without possession or receipt, is not illegal.” Id. On appeal, for the
first time, Sturm contended that by not defining “receives,” the instruction risked the
jury’s thinking that searching for and viewing child pornography on the computer was
“receipt” (which it then wasn’t). Id. In this circumstance, we concluded that the defendant
had invited the error. But Sturm differs from Jereb’s case. In Sturm, the issue of
“receives” and “receipt” was apparent, not hidden in a jumbled statute like 18 U.S.C.
§ 111(a)(1). And the defendant chose to deal with this known issue by informing the jury
that observing child pornography without possession or receipt is not illegal. Id. So,
unlike Jereb, Sturm had surveyed the landscape and chosen his route.
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