     10-4104-cr
     United States of America v. Deitron Davis

 1                        UNITED STATES COURT OF APPEALS
 2
 3                            FOR THE SECOND CIRCUIT
 4
 5                                August Term 2012
 6
 7       (Argued: February 27, 2012              Decided: August 24, 2012)
 8
 9                          Docket No. 10-4104-cr
10         -----------------------------------------------------x

11                     UNITED STATES OF AMERICA,
12
13                                               Appellee,
14
15                                 -- v. --
16
17                            DEITRON DAVIS,
18
19                                               Defendant-Appellant.
20
21         -----------------------------------------------------x
22
23   B e f o r e :     WALKER, LYNCH and DRONEY, Circuit Judges.

24         Appeal from a judgment of the United States District Court

25   for the Eastern District of New York (Frederic Block, Judge)

26   convicting defendant of narcotics offenses and resisting arrest.

27   Appellant challenges his convictions as based on insufficient

28   evidence.    We AFFIRM in part and VACATE in part, and REMAND for

29   further proceedings.

30                                       BRUCE R. BRYAN, Syracuse, NY, for
31                                       Appellant.
32
33                                       THOMAS M. SULLIVAN, Assistant U.S.
34                                       Attorney for the Eastern District
35                                       of New York (Susan Corkery, on the
36                                       brief), for Loretta E. Lynch, U.S.
37                                       Attorney for the Eastern District
38                                       of New York, for Appellee.
39

                                           1
 1   JOHN M. WALKER, JR., Circuit Judge:

 2           Defendant-Appellant Deitron Davis appeals from a judgment of

 3   the United States District Court for the Eastern District of New

 4   York (Frederic Block, Judge), following a jury trial, convicting

 5   him of narcotics offenses and resisting arrest.    On appeal, Davis

 6   argues that (1) there was no evidence from which a jury could

 7   make the requisite finding that he knew that the criminal scheme

 8   at issue involved narcotics distribution, and (2) evidence that

 9   he fled from the police and struggled against being handcuffed

10   did not support a conviction for misdemeanor resisting arrest.

11   We hold that the evidence supported Davis’s convictions for the

12   narcotics charges but not for resisting arrest.    We therefore

13   AFFIRM as to the former charges but VACATE and REMAND with

14   instructions to dismiss the latter.

15                                 BACKGROUND

16   I.      Factual Background

17           The evidence at trial demonstrated the following:

18           On June 2, 2008, employees of Forward Air shipping company’s

19   Columbus, Ohio branch received certain damaged crates that were

20   in transit from Phoenix, Arizona, to JFK Airport in New York

21   City.    In accordance with company policy, the employees opened

22   the packages and discovered what appeared to be plastic-wrapped

23   bales of marijuana.    Forward Air’s records revealed that the

24   shipment had been sent from Phoenix by “Carl Paplow.”       The bill

25   of lading stated that the consignee was “Robert Francis” and that


                                        2
 1   the crates contained “rims, tires and accessories, [and] audio

 2   parts,” Appendix (“App.”) 23.    The employees reported their

 3   discovery to local authorities, who contacted the DEA’s New York

 4   office.   The DEA requested that the crates be sent on to their

 5   destination in the normal course for a controlled delivery.

 6         The crates arrived at JFK on June 3 and Forward Air turned

 7   them over to local DEA agents.   The agents searched the crates

 8   pursuant to a warrant and discovered 258 kilograms of marijuana.

 9   They removed the marijuana, re-weighted the crates and returned

10   them to Forward Air’s JFK branch.     While the crates were in DEA

11   custody, someone (apparently not Davis) sought to retrieve the

12   shipment from Forward Air’s JFK branch using a driver’s license

13   for “Robert Francis,” but was turned away as the crates were not

14   then available.

15         On June 3, the day the crates arrived in New York, Davis’s

16   friend Kieama Hyman and her friend Sherelle (whose last name does

17   not appear in the record) called Davis, looking for something to

18   do.   Davis picked the two women up in his black Nissan Maxima and

19   drove to his cousin’s house nearby.    According to Hyman, Davis

20   “started driving crazy” as he neared the house, App. 71, which

21   Hyman interpreted as Davis trying not to be seen.    Once they

22   arrived at the house, Davis went inside while the two women

23   waited in the car.    Davis returned and asked Hyman whether she

24   had identification.   When she responded that she did, Davis asked

25   her if she would help pick up some rims for his car.    Hyman


                                       3
 1   agreed.   Before they left Davis’s cousin’s house, Davis switched

 2   cars to a gold Toyota Avalon.    He claimed that the rims would not

 3   fit inside the Maxima, though Hyman did not think the Avalon was

 4   much bigger.   Davis drove Hyman and Sherelle to a nearby Home

 5   Depot.    He then left the car and spoke to a man in a white van

 6   for about five minutes.   He returned to the Avalon and,

 7   accompanied now by the white van, proceeded to Forward Air’s JFK

 8   facility.   According to a surveillance officer at the facility,

 9   Davis “drove back and forth at least twice” before parking in

10   front of Forward Air.   App. 52.

11        After stopping at Forward Air, Davis left the Avalon and

12   spoke once more with the driver of the white van.    He then gave

13   Hyman a copy of the bill of lading for the shipment and told her

14   to go in and pick up the rims.     Hyman and Sherelle went inside,

15   where Hyman presented the bill of lading and her identification

16   and signed some paperwork.    The driver of the white van then

17   pulled up to the Forward Air bay and loaded the crates inside.

18   Once the crates were loaded in the van, Davis and the two women

19   drove off in the Avalon, followed by the white van -- and by DEA

20   agents.

21        Circling the blocks, Davis remarked that they were being

22   followed.   He pulled over and shouted at Hyman and Sherelle to

23   get out of the car.   As they did, Davis said he would be back to

24   pick them up and drove off.   The agents then turned on their

25   strobe lights; the white van pulled over but Davis sped off in

26   the Avalon.

                                        4
 1        The officers arrested Hyman and Sherelle.    While under

 2   arrest, Hyman received a phone call from Davis which she answered

 3   at the officers’ instruction.   Davis said he would pick the two

 4   women up at a nearby intersection, but to make sure they were not

 5   followed.   Hyman and Sherelle walked towards the intersection,

 6   where an agent observed Davis walking nearby.

 7        The agent who saw Davis identified himself and drew his

 8   weapon, at which point Davis ran.    The agent chased Davis for

 9   approximately ten minutes, during which time Davis ignored many

10   commands to stop and the agent several times caught up with and

11   struck Davis -- a large man at six feet seven inches -- with his

12   baton.   Davis did not fight back.   Eventually, other agents

13   joined the chase and tackled Davis.   While pinned stomach-down on

14   the ground, Davis placed his hands under his body and was

15   “fighting [and] resisting” against being handcuffed for one or

16   two minutes, App. 123, though he ultimately was subdued,

17   handcuffed and arrested.   There was no evidence that Davis

18   threatened or struck out at any of the agents.

19        After arresting Davis, the agents searched him and

20   recovered, inter alia, his driver’s license and a Jet Blue

21   Airways receipt listing Davis as a passenger on a May 6, 2008

22   flight from Phoenix to JFK.   They later confirmed with Jet Blue

23   that Davis had been on that flight and that he previously had

24   flown from JFK to Phoenix on May 2.   They also learned that

25   before Davis had boarded the May 2 flight, an FBI agent had asked

26

                                      5
 1   him why he had no carry-on or checked luggage.   Davis had

 2   responded that he planned to buy clothes in Phoenix.

 3          Davis was interviewed by DEA agents after his arrest.   Among

 4   other things, he claimed not to have heard of or been to Forward

 5   Air.

 6   II.    Procedural Background

 7          Davis was tried for conspiracy to distribute marijuana in

 8   violation of 21 U.S.C. §§ 841(b)(1)(B)(vii) and 846; attempting

 9   to possess marijuana with intent to distribute in violation of 21

10   U.S.C. § 841 (b)(1)(B)(vii); and the misdemeanor of resisting

11   arrest in violation of 18 U.S.C. § 111(a)(1).    A jury convicted

12   him on all three counts.   Hyman, Sherelle and the driver of the

13   white van were not charged because there was no evidence

14   contradicting their claims that they were unaware that the crates

15   contained marijuana.

16          Davis moved for a judgment of acquittal under Fed. R. Crim.

17   P. 29.   With regard to the narcotics convictions, he argued that

18   “there was insufficient evidence that he knew that the shipment

19   contained a controlled substance.”    Special Appendix (“S.A.”) 2.

20   The district court disagreed:

21          [T]he evidence, taken in the light most favorable to
22          the government, . . . established, inter alia, that
23          Davis traveled to Arizona (the source of the shipment)
24          less than a month before the shipment arrived; that he
25          possessed a bill of lading for the shipment (albeit
26          under another name); and that he told [Hyman] that he
27          was excited to go pick up “his rims.” A jury could
28          reasonably infer from those facts that Davis traveled
29          to Arizona to arrange the shipment and, therefore, that
30          he was the intended recipient of the shipment.


                                       6
 1   Id. at 3.   As to his conviction for resisting arrest, Davis

 2   pointed out that the government had offered no evidence that

 3   Davis had directed any force at the arresting officers.   He

 4   contended that evidence demonstrating only that he had not

 5   yielded to arrest was legally insufficient for a conviction.      The

 6   district court rejected this argument as well, concluding that

 7   Davis’s willful use of physical force in making it difficult for

 8   officers to handcuff him permitted a conviction for resisting

 9   arrest.

10        The district court entered a judgment of conviction on all

11   counts and sentenced Davis principally to a 60-month term of

12   imprisonment.   Davis appeals from that judgment on the grounds

13   raised in his Rule 29 motion.

14                                DISCUSSION

15   I.   Standard of Review

16        “We review challenges to evidentiary sufficiency de novo,

17   ‘view[ing] the evidence presented in the light most favorable to

18   the government, and . . . draw[ing] all reasonable inferences in

19   its favor.’”    United States v. Szur, 289 F.3d 200, 219 (2d Cir.

20   2002) (quoting United States v. Autuori, 212 F.3d 105, 114 (2d

21   Cir. 2000)).    “A defendant challenging the sufficiency of the

22   evidence supporting a conviction faces a heavy burden.”   United

23   States v. Glenn, 312 F.3d 58, 63 (2d Cir. 2002) (internal

24   quotation marks omitted).   We must uphold the conviction as long

25   as “any rational trier of fact could have found the essential



                                       7
 1   elements of the crime beyond a reasonable doubt.”   Jackson v.

 2   Virginia, 443 U.S. 307, 319 (1979).

 3   II.   Convictions for the Narcotics Offenses

 4         With regard to Davis’s convictions for conspiring to

 5   distribute marijuana and attempting to possess marijuana with

 6   intent to distribute, the question before us is straightforward:

 7   Was the evidence at trial legally sufficient to support a finding

 8   that Davis knew that the shipped crates contained a controlled

 9   substance?

10         To prove that a person possessed a controlled substance with

11   intent to distribute, the government must prove “that the

12   defendant knew he was dealing with a controlled substance.”

13   United States v. Torres, 604 F.3d 58, 65-66 (2d Cir. 2010).      The

14   same holds true for drug conspiracy charges.   See id. at 66.     The

15   government need not prove that the defendant knew the specific

16   drug at issue, but only that he was dealing with some controlled

17   substance.    See United States v. Morales, 577 F.2d 769, 776 (2d

18   Cir. 1978).

19         On appeal, as he did in his Rule 29 motion before the

20   district court, Davis relies on a line of this Court’s decisions

21   reversing convictions for insufficient evidence that the

22   defendant knew the specific object of the criminal scheme at

23   issue.   For example, in United States v. Ogando, 547 F.3d 102 (2d

24   Cir. 2008), this Court reversed the conviction of a taxi driver

25   who was scheduled to pick up a drug smuggler at an airport.     We



                                       8
 1   held that the evidence -- which consisted of the defendant’s

 2   presence at the airport, earlier presence at another airport

 3   where another co-conspirator was arrested, and associations with

 4   certain other co-conspirators -- “simply show[ed] that

 5   [defendant] was a livery cab driver regularly used by members of

 6   this conspiracy.”   Id. at 108; see also Torres, 604 F.3d at 70-71

 7   (defendant’s suspicious behavior in attempting to take delivery

 8   of narcotics shipment did not indicate knowledge that the

 9   shipment contained drugs); United States v. Lorenzo, 534 F.3d

10   153, 160-61 (2d Cir. 2008) (defendant’s periodic involvement with

11   conspirators, including transferring money to one, was indicative

12   of illegal behavior but did not demonstrate knowledge that the

13   conspiracy involved narcotics); United States v. Rodriguez, 392

14   F.3d 539, 546-48 (2d Cir. 2004) (evidence demonstrated only that

15   defendant served as a lookout for some sort of illicit

16   transaction, not that he knew it was a drug transaction

17   specifically); United States v. Friedman, 300 F.3d 111, 126 (2d

18   Cir. 2002) (evidence of calls between conspirator and defendant,

19   and that defendant furnished guns to conspirator, did not

20   demonstrate that defendant knew that the object of the conspiracy

21   was extortion); United States v. Samaria, 239 F.3d 228, 236-38

22   (2d Cir. 2001) (gypsy cab driver’s presence in car with

23   conspirators, and assistance with loading non-transparent boxes

24   containing stolen credit card information, did not demonstrate

25   knowledge of conspiracy to commit credit card fraud), abrogated

26



                                      9
 1   on other grounds, United States v. Huezo, 546 F.3d 174, 180 n.2

 2   (2d Cir. 2008).

 3        In each of these cases, save Torres, the defendant played a

 4   role subordinate to that of the principal engaged in the criminal

 5   conduct charged, and the defendant plausibly could have fulfilled

 6   that role without knowing the scheme’s criminal nature.   That is,

 7   it is conceivable that the criminal enterprises at issue could

 8   have functioned as planned without the requisite criminal

 9   knowledge of the taxi driver (Ogando), the money transferor

10   (Lorenzo), the lookout (Rodriguez), the frequent caller and gun

11   supplier (Friedman), and the driver and box loader (Samaria).

12   This case is easily distinguishable from those cases, in which

13   the overall circumstances of each case did not support a finding

14   beyond a reasonable doubt that the defendant had the requisite

15   knowledge.   The evidence in this case established, either

16   directly or by inference, that Davis played a principal role,

17   even a managerial one, in the drug conspiracy and for that reason

18   would have reasonably possessed the requisite criminal knowledge.

19        Torres, 604 F.3d 58, in which we reversed a conviction for

20   conspiracy to distribute cocaine, presented a factual scenario

21   closer to this one.   Davis relies upon it to argue that the

22   evidence here is insufficient to prove his knowledge that the

23   Forward Air packages contained a controlled substance.    In

24   Torres, the defendant Torres and several other men, in suspicious

25   fashion, had attempted to receive a UPS delivery of certain bulky

26   packages addressed to Torres.   They greeted the deliveryman



                                     10
 1   outside the destination address, presented a driver's license for

 2   Torres that listed him as living at a different address, and

 3   followed the deliveryman after he refused to turn over the

 4   packages.    Eventually, UPS and the police discovered that the

 5   packages contained cocaine and staged a controlled delivery at a

 6   UPS store.   Once again, Torres suspiciously attempted to receive

 7   the packages, and this time was arrested.   Reviewing his

 8   conviction, this Court concluded that the evidence supported

 9   findings that “Torres had a connection with the Packages” and

10   that, based on his suspicious behavior, he “was most likely aware

11   that the Packages contained contraband of some kind.”   Id. at 69.

12   But the record did not contain “any evidence that Torres knew the

13   Packages contained narcotics,” such as “evidence as to the nature

14   of Torres’s associations with the persons who shipped the cocaine

15   or with the persons who expected to distribute it.”   Id. at

16   70-71.   Because “[t]here was no evidence of any conduct by Torres

17   other than his efforts to gain possession of the Packages,” this

18   Court held that there was no evidence that Torres knew of the

19   Packages’ contents.   Id. at 71.

20        There may be tension between Torres and decisions in other

21   circuits as to whether an inference of guilty knowledge may be

22   drawn from suspicious behavior of an intended recipient of a

23   narcotics package.    See United States. v. Hernandez, 17 F. App’x

24   464, 467 (7th Cir. 2001) (collecting cases for the proposition

25   that “[a] jury may infer a defendant’s guilty knowledge based on

26   the suspicious circumstances surrounding receipt of a drug



                                        11
 1   shipment”); see also, e.g., United States v. Hernández, 218 F.3d

 2   58, 66-67 (1st Cir. 2000) (affirming convictions based on, inter

 3   alia, the facts that one defendant was the intended recipient of

 4   the shipment and thereafter controlled the packages, and another

 5   defendant drove evasively after taking possession of the

 6   packages); United States v. Gbemisola, 225 F.3d 753, 759-60 (D.C.

 7   Cir. 2000) (“The Southeast Asian shippers placed heroin in the

 8   false bottoms of the pots –- in an amount (and value) the jury

 9   could reasonably have doubted they would have entrusted to

10   recipients who thought they were merely importing artifacts, and

11   in a location that would have been particularly risky if an

12   ‘innocent’ recipient had decided to use the cooking pots for

13   their apparent purpose.”); United States v. Brown, 33 F.3d 1014,

14   1015-16 (8th Cir. 1994) (affirming the conviction of a defendant

15   who tried to take receipt of a UPS delivery of drugs in facts

16   resembling those in Torres); cf. United States v. Quilca–Carpio,

17   118 F.3d 719, 722 (11th Cir. 1997) (“[A] prudent smuggler is not

18   likely to entrust such valuable cargo to an innocent person

19   without that person’s knowledge.” (internal quotation marks

20   omitted)).   But cases of this sort are fact-dependent.   In this

21   case, we have no doubt, based on all the evidence, that the jury

22   permissibly could have inferred Davis’s guilty knowledge.

23        First, the evidence here did not link Davis only to the

24   receipt of the drugs but also to their initial shipment.    Davis,

25   traveling without luggage, flew from New York to Phoenix, where

26   the shipment originated, a month before he attempted to receive



                                     12
 1   the crates.   Viewing that evidence in the light most favorable to

 2   the government and as the district court correctly concluded,

 3   “[a] jury could reasonably infer . . . that Davis traveled to

 4   Arizona to arrange the shipment.”    S.A. 3.    And because it

 5   logically can be inferred that one who arranges a shipment knows

 6   its contents, the jury here easily could have found from the

 7   totality of the evidence that Davis knew precisely what was in

 8   the shipped packages.

 9        Second, as noted earlier, the evidence showed that Davis had

10   an authoritative role in the criminal scheme.     See United States

11   v. Cruz, 363 F.3d 187, 199 (2d Cir. 2004) (a jury may reasonably

12   infer guilty knowledge from evidence that the defendant exercised

13   authority within the conspiracy itself); Samaria, 239 F.3d at 235

14   (same).   He controlled the circumstances surrounding the pick up

15   –- choosing when to pick up the crates, how to pick up the

16   crates, and who would pick up the crates.      Specifically, Davis

17   recruited Kieama Hyman and her friend to pick up the crates even

18   though he easily could have done so himself; switched cars at his

19   cousin’s house; directed Hyman to use her identification to

20   retrieve the crates from Forward Air; and it appears that he

21   obtained a van with a driver to pick up the crates.     See United

22   States v. Medina, 32 F.3d 40, 44 (2d Cir. 1994) (affirming

23   conviction in part because defendant approved participation of an

24   additional co-conspirator and supplied a gun); United States v.

25   Tussa, 816 F.2d 58, 63 (2d Cir. 1987) (affirming conviction of

26   defendant who took part in the negotiations leading to a drug

27   delivery).

                                     13
 1        Third, the evidence showed that Davis concealed his

 2   involvement in the criminal conspiracy: the crates were not

 3   addressed to him (but to “Robert Francis”); he recruited another

 4   person without knowledge of the true contents of the crates to

 5   pick them up; and he lied to this person by telling her that he

 6   did not have his driver’s license even though he did.   This

 7   evidence supports an inference of Davis’s knowledge of the

 8   crates’ contents.   See, e.g., Hernandez, 218 F.3d at 66 (“That

 9   the name of the consignee was fabricated” supported the

10   conclusion that the defendant knew the container’s contents.);

11   United States v. Johnson, 57 F.3d 968, 972 (10th Cir. 1995)

12   (“Similarly probative of [defendant’s] guilty knowledge is the

13   fact that [defendant] listed on the airbill a false name and

14   nonexistent address for the package’s destination.”).   These

15   facts, along with the fact that the bill of lading identified the

16   recipient as “Robert Francis” rather than Davis, and a person

17   claiming to be “Robert Francis” first tried to retrieve the

18   crates, are inconsistent with Davis’s statements to Hyman that

19   the crates contained rims for his car.

20        Finally, Davis’s possession of the bill of lading supports

21   an inference that he had the requisite knowledge.   For one, taken

22   together with his recruitment of select people, it gave him not

23   only the “prospect[] of having sole dominion over the [crates],”

24   see Torres, 604 F.3d at 71, but sole dominion itself.

25   Furthermore, as we previously have observed, “possession of

26   documents relat[ing] to the crime” may support an inference of

27

                                     14
 1   knowledge.    Cruz, 363 F.3d at 199; see also Samaria, 239 F.3d at

 2   235 (same).

 3        Taken together, these circumstances easily permitted an

 4   inference that Davis, far from being an unwitting courier for a

 5   drug-distribution conspiracy, was a willing (if not central)

 6   participant who knew that the shipment contained narcotics.       See

 7   United States v. Stewart, 485 F.3d 666, 671 (2d Cir. 2007)

 8   (collecting cases for the proposition that a defendant’s guilty

 9   knowledge “may be established through circumstantial evidence”).

10   We therefore have no difficulty affirming Davis’s convictions on

11   the narcotics counts.

12   III. Conviction for Resisting Arrest

13        The conviction for resisting arrest, however, presents a

14   different picture.    18 U.S.C. § 111 provides:

15        (a) In general.--Whoever--
16
17                (1) forcibly assaults, resists, opposes, impedes,
18                intimidates, or interferes with [a U.S. officer or
19                employee] while engaged in or on account of the
20                performance of official duties . . .
21
22        shall, where the acts in violation of this section
23        constitute only simple assault, be fined under this
24        title or imprisoned not more than one year, or both,
25        and where such acts involve physical contact with the
26        victim of that assault or the intent to commit another
27        felony, be fined under this title or imprisoned not
28        more than 8 years, or both.
29
30        (b) Enhanced penalty.--Whoever, in the commission of
31        any acts described in subsection (a), uses a deadly or
32        dangerous weapon (including a weapon intended to cause
33        death or danger but that fails to do so by reason of a
34        defective component) or inflicts bodily injury, shall
35        be fined under this title or imprisoned not more than
36        20 years, or both.

37


                                       15
 1   Davis was tried and convicted under the misdemeanor clause in

 2   Section 111(a).   We therefore must decide whether the evidence

 3   permitted the jury to find, beyond a reasonable doubt, that Davis

 4   “forcibly assault[ed], resist[ed], oppose[d], impede[d],

 5   intimidate[d], or interfere[d] with [a U.S. officer or employee]

 6   while engaged in or on account of the performance of official

 7   duties” and, in doing so, committed “simple assault.”

 8        A.   “Simple Assault” Under Section 111(a)

 9        In United States v. Chestaro, 197 F.3d 600 (2d Cir. 1999),

10   we considered a vagueness challenge to the predecessor version of

11   Section 111, which was identical to the current version in

12   relevant part.1   The appellant in that case argued that “simple

13   assault,” which delineates misdemeanor conduct, was not clearly

14   defined and that the statute therefore did not sufficiently

15   distinguish between misdemeanors and felonies.    We disagreed.    We

16   noted “‘the settled principle of statutory construction that,

17   absent contrary indications, Congress intends to adopt the common

18   law definition of statutory terms.’”   Id. at 605 (quoting United

19   States v. Shabani, 513 U.S. 10, 13 (1994)).   We also pointed out

20   that the term “simple assault” appears elsewhere in the U.S. Code

21   -– in 18 U.S.C. § 113 –- and that it had “been held to ‘embrace

22   the common law meaning’” in that context.   Chestaro, 197 F.3d at


     1
 1        Section 111(a)’s felony clause, not at issue here,
 2   previously provided that “in all other cases, [the perpetrator]
 3   would be fined under this title or imprisoned not more than three
 4   years, or both.” In 2002, Congress boosted the maximum prison
 5   term for the felony to eight years. And in 2008, Congress
 6   replaced “in all other cases” with the language “where such acts
 7   involve physical contact with the victim of that assault or the
 8   intent to commit another felony.”

                                     16
 1   605 (quoting United States v. Stewart, 568 F.2d 501, 504 (6th

 2   Cir. 1978)).   We therefore held that “simple assault,” as used in

 3   Section 111(a), incorporated the established common law

 4   definition of the phrase: a crime, not involving touching,

 5   “committed by either a willful attempt to inflict injury upon the

 6   person of another, or by a threat to inflict injury upon the

 7   person of another which, when coupled with an apparent present

 8   ability, causes a reasonable apprehension of immediate bodily

 9   harm.”   Chestaro, 197 F.3d at 605, 606 (internal quotation marks

10   omitted); see also United States v. Vallery, 437 F.3d 626, 631

11   (7th Cir. 2006) (“Under the common law, physical contact is the

12   line of demarcation between simple assault and battery.”).

13         Following Chestaro, we clarified that “simple assault”

14   retains its common law definition in the context of the current

15   version of Section 111(a).   See United States v. Hertular, 562

16   F.3d 433, 440 (2d Cir. 2009).   Thus, for a defendant to be guilty

17   of the misdemeanor of resisting arrest under Section 111(a), he

18   necessarily must have committed common law simple assault.     See

19   id.

20         We recognize that there is disagreement among the federal

21   courts of appeals in interpreting Section 111(a)’s use of “simple

22   assault.”   The main problem, as explained by the Ninth Circuit,

23   is that Section 111(a) “appears to prohibit six different types

24   of actions” –- assaulting, resisting, opposing, impeding,

25   intimidating and interfering -– “only one of which is ‘assault,’

26   but then it draws the line between misdemeanors and felonies

27   solely by referencing the crime of assault.”   United States v.

                                     17
 1   Chapman, 528 F.3d 1215, 1218-19 (9th Cir. 2008).    “Therefore, it

 2   is unclear whether the statute prohibits acts of resistance,

 3   opposition, impediment, intimidation, or interference that do not

 4   also involve an underlying assault.”    Id. at 1219.   Several of

 5   our sister circuits have taken the same approach as, or similar

 6   approaches to, this Court –- namely, requiring some form of

 7   common law simple assault for Section 111(a) misdemeanor

 8   convictions.   See Chapman, 528 F.3d at 1218-22; Vallery, 437 F.3d

 9   at 630-34; United States v. Hathaway, 318 F.3d 1001, 1008-09

10   (10th Cir. 2003).

11        But two circuits have taken a different approach.     In United

12   States v. Gagnon, 553 F.3d 1021 (6th Cir. 2009), the Sixth

13   Circuit, interpreting the predecessor version of Section 111,

14   opined that the approach taken by this Court and others

15   “disregards five of the six actions Congress specifically

16   delineated” and thus makes “a great deal of what § 111 does say

17   entirely meaningless.”   Id. at 1026.    That court therefore held

18   that in the context of Section 111(a), “simple assault” is not

19   limited to its common law meaning, but is “a term of art that

20   includes the forcible performance of any of the six proscribed

21   actions in § 111(a) without the intent to cause physical contact

22   or to commit a serious felony.”    Id. at 1027 (emphasis omitted).

23   Construing the current version of Section 111, the Fifth Circuit

24   followed the Sixth Circuit’s lead.     See United States v.

25   Williams, 602 F.3d 313, 317 (5th Cir. 2010).    The Fifth Circuit

26   reasoned that the Sixth Circuit’s reading “avoid[s] rendering

27   superfluous the other five forms of conduct proscribed by

                                       18
 1   § 111(a)(1).”   Williams, 602 F.3d at 317.   That court also found

 2   it “more consonant with the dual purpose of the statute, which,

 3   the Supreme Court has noted, is not simply to protect federal

 4   officers by punishing assault, but also to ‘deter interference

 5   with federal law enforcement activities’ and ensure the integrity

 6   of federal operations by punishing obstruction and other forms of

 7   resistance.”    Id. (quoting United States v. Feola, 420 U.S. 671,

 8   678 (1975)).

 9        While we do not find this reasoning to be without basis, we

10   ultimately are not persuaded by it.   First, as in any task of

11   statutory construction, “[w]e begin with the statute’s text.”

12   United States v. Lyttle, 667 F.3d 220, 223 (2d Cir. 2012).     And

13   as we noted in Chestaro, it is well-settled that “where a federal

14   criminal statute uses a common-law term of established meaning

15   without otherwise defining it, the general practice is to give

16   that term its common-law meaning.”    United States v. Turley, 352

17   U.S. 407, 411 (1957); see Chestaro, 197 F.3d at 605.    In defining

18   misdemeanor conduct under Section 111(a), Congress chose to use

19   the specific phrase “simple assault,” which as noted earlier has

20   a longstanding and precise meaning under the common law.

21        Second, not only does “simple assault” have an established

22   common law meaning, it does not appear to have a contrary meaning

23   in the vernacular, the U.S. Code or anywhere else.   It therefore

24   would have been a peculiar phrase for Congress to employ for some

25   other, unspecified meaning –- especially after courts had

26   assigned the phrase its common law meaning in the context of

27   Section 113.    See United States v. Delis, 558 F.3d 177, 183 (2d

                                      19
 1   Cir. 2009).    Indeed, so far as we can tell, no court, except for

 2   the Fifth and Sixth Circuits in construing this law, has ever

 3   understood “simple assault” as “‘a term of art that includes the

 4   forcible performance of [assaulting, resisting, opposing,

 5   impeding, intimidating, or interfering] without the intent to

 6   cause physical contact or to commit a serious felony.’”       See

 7   Williams, 602 F.3d at 317 (quoting Gagnon, 553 F.3d at 1027)

 8   (emphasis omitted).    And our textual analysis gives us no reason

 9   to believe that Congress had that understanding.

10           Third, it bears noting that Congress continued its use of

11   “simple assault” in Section 111(a) when it amended the statute in

12   2008.    That amendment preceded the Fifth and Sixth Circuit’s

13   interpretation of “simple assault” discussed earlier.2    Indeed,

14   it appears that every court to have interpreted Section 111(a)’s

15   use of “simple assault” before Congress amended the statute gave

16   the phrase its common law meaning.3    One would think that


     2
 1        Although the Sixth Circuit interpreted the predecessor
 2   version of Section 111 in Gagnon, Congress had already amended
 3   the statute when that case was decided. See 553 F.3d at 1024
 4   n.2.
     3
 1         In Gagnon, the Sixth Circuit relied partly on the Eighth
 2   Circuit’s earlier statement that “in the context of § 111, the
 3   definition of simple assault is conduct in violation of § 111(a),
 4   which does not involve actual physical contact, a dangerous
 5   weapon, serious bodily injury, or the intent to commit murder or
 6   another serious felony.” United States v. Yates, 304 F.3d 818,
 7   822 (8th Cir. 2002); see also Gagnon, 553 F.3d at 1026 n.6. In
 8   Yates, however, the Eighth Circuit made clear that it adopted the
 9   common law meaning of “simple assault” and only then used the
10   language contained in a neighboring statute to limit the
11   definition further. See Yates, 304 F.3d at 821-22. In other
12   words, the Eighth Circuit narrowed the common law meaning of
13   “simple assault” for purposes of Section 111(a); it did not
14   expand that meaning to include Section 111(a)(1)’s five remaining
15   acts.

                                       20
 1   Congress, in amending the statute, would have corrected such a

 2   broad misreading had one existed.

 3        Furthermore, we do not believe, as the Fifth and Sixth

 4   Circuits have worried, that ascribing “simple assault” its common

 5   law meaning “render[s] superfluous the [non-assault] forms of

 6   conduct proscribed by § 111(a)(1).”   Williams, 602 F.3d at 317.

 7   While we are not called upon today to interpret Section 111(a)’s

 8   felony clause, we note that the statute’s five non-assault acts

 9   would appear to be criminally prohibited by the felony clause

10   “where such acts involve . . . the intent to commit another

11   felony.”   Thus, our interpretation does not necessarily run afoul

12   of the preference against “interpretations of statutes that

13   render language superfluous.”   Conn. Nat’l Bank v. Germain, 503

14   U.S. 249, 253 (1992).4

15        B.    Davis’s Conduct

16        To be guilty of the misdemeanor of resisting arrest, Davis

17   must have, inter alia, committed common law simple assault: a

18   crime, not involving touching, “committed by either a willful

19   attempt to inflict injury upon the person of another, or by a

20   threat to inflict injury upon the person of another which, when

21   coupled with an apparent present ability, causes a reasonable



     4
 1        We recognize that the Fifth and Sixth Circuits’
 2   interpretation of “simple assault,” as a broad “term of art”
 3   encompassing all of the actions listed in Section 111(a)(1),
 4   would better “deter interference with federal law enforcement
 5   activities,” which the Supreme Court has identified as part of
 6   Congress’s intention in enacting Section 111. See Feola, 420
 7   U.S. at 678. But we believe that the plain text of Section 111
 8   and the other considerations described above command the
 9   interpretation that we have given it.

                                     21
 1   apprehension of immediate bodily harm.”   Chestaro, 197 F.3d at

 2   605 (internal quotation marks omitted).

 3        The evidence adduced at trial did not permit such a finding.

 4   It showed only that Davis ran from a DEA agent and, when

 5   ultimately tackled to the ground, struggled against being

 6   handcuffed -- primarily by putting his hands under his stomach.

 7   While one of the arresting agents (the one who had chased Davis

 8   on foot) testified on direct examination that Davis was

 9   “fighting” during his arrest, App. 123, any suggestion that Davis

10   was striking blows, rather than more passively resisting being

11   handcuffed, was retracted by the agent.   On cross-examination,

12   the agent testified that (1) Davis did not punch or attack anyone

13   during his arrest, (2) Davis was “using his muscles to avoid

14   having the hands forced behind his back to be cuffed,” App. 131-

15   32, and (3) certain injuries to the agent resulted from a fall

16   during the chase and not from any aggressions by Davis.    Thus,

17   there was no evidence that Davis engaged in any conduct

18   whatsoever that demonstrated a desire to injure an agent or would

19   cause an agent to apprehend immediate injury.

20        Davis’s conviction for resisting arrest therefore must be

21   overturned.

22                              CONCLUSION

23        For these reasons, we AFFIRM the judgment of the district

24   court with respect to Davis’s convictions on the narcotics

25   counts, but VACATE his conviction for resisting arrest.    We

26   REMAND with directions to dismiss the Section 111(a) count and

27   for resentencing consistent with this opinion.

                                    22
