                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-4831


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JAY BONANZA BRILEY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:12-cr-00482-LO-1)


Argued:   September 19, 2014                Decided:   October 22, 2014


Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by published opinion.       Judge Wilkinson wrote           the
opinion, in which Judge Duncan and Judge Keenan joined.


ARGUED: Cara Viglucci Lopez, SIDLEY AUSTIN LLP, Washington,
D.C., for Appellant.   David Sang Hak Lee, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.  ON BRIEF:
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia; Gordon D. Todd, Sean R.
Dickson, SIDLEY AUSTIN LLP, Washington, D.C., for Appellant.
Dana J. Boente, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
WILKINSON, Circuit Judge:

       Appellant Jay Bonanza Briley was convicted after a two-day

jury     trial     on        four     counts     arising        from     intimate     sexual

activities        in     a     national        park       and    an    ensuing      physical

altercation with United States Park Police officers. Briley now

challenges the interpretation of the statute under which he was

convicted, 18 U.S.C. § 111. He also contests the admission of

evidence of       a     subsequent       act     under     Federal     Rule    of   Evidence

404(b). Finding no reversible error, we affirm.



                                                I.

       In reviewing Briley’s conviction, we consider the evidence

in the light most favorable to the prevailing party, here the

government. Evans v. United States, 504 U.S. 255, 257 (1992);

see United States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en

banc).



                                                A.

       On the afternoon of January 12, 2012, Park Police officers

were   patrolling        the        Washington       Sailing    Marina    in   Alexandria,

Virginia.        The     Marina        serves        as   a     recreational        area   at

Daingerfield Island, a national park situated along the George

Washington Memorial Parkway and the Potomac River. The Marina,

which has several parking lots, is also a reputed meeting place

                                                2
for sexual encounters. Officers also patrol the area to prevent

criminal activities such as illicit drug use, alcohol offenses,

and disorderly conduct.

      Two    plain-clothes            Park    Police          officers      on    patrol      in    an

unmarked vehicle, William Brancato and Robert Usher, observed a

man parking his car next to Briley’s SUV. After the man entered

Briley’s     vehicle,          the    two    men       reclined     the     front     seats,       and

Briley placed a sunscreen across the windshield. Seeing other

people approaching, Briley drove to another Marina parking lot.

Inside      the    newly        parked       SUV,       Briley       was       naked,     and      his

companion’s pants were down. From afar, the two officers saw

Briley      and    the        other     man    preparing            to     engage       in    sexual

relations.

      Brancato and Usher contacted two other Park Police officers

on   patrol       nearby,       Corey       Mace       and    Thomas      Twiname.        Mace     and

Twiname, who were wearing tactical attire with police markings,

drove to the Marina and approached Briley’s SUV on foot. Briley

exclaimed, “It’s the cops.” J.A. 151. In response to a directive

from Mace, Briley’s companion opened the front passenger door,

exited the SUV, and lay on the ground. Briley remained in the

vehicle.

      Standing          on    the     driver’s         side    of    the       vehicle,      Twiname

banged   on       the    window       and     yelled,         “Police,         open   the     door.”

J.A. 115.     When           Briley    objected         that    he       was     naked,      Twiname

                                                   3
threatened to smash the window. Briley then opened the door, but

he   refused    to     follow   Twiname’s   subsequent    order    to   exit   the

vehicle. Twiname grabbed Briley’s left arm and struggled to pull

him from the vehicle. After Twiname let Briley pull his pants

up, Briley locked his legs under the steering column to secure

himself and began honking the horn. In an unsuccessful effort to

handcuff Briley, Twiname entered the SUV and ended up behind the

driver’s seat. From there, he wrapped his arms around Briley’s

neck   and     upper    shoulders.   Mace    tried   to   assist    his   fellow

officer with a wristlock, to no avail. Twiname could not subdue

Briley.

       The two plain-clothes officers, Usher and Brancato, arrived

on the scene, shouting “police” and “stop resisting.” J.A. 121,

212. After securing Briley’s companion, Usher joined Brancato on

the driver’s side of the car. As these two officers grabbed

Briley and attempted to wrest him from the vehicle, Briley tried

to push Usher out of the way and struck him in the arms, side,

and lower back. Usher suffered from various lower-back problems

after the incident.

       During the fracas on the driver’s side of the car, Briley

kicked Brancato in the abdomen. Brancato then tried to loosen

Briley’s position in the vehicle by striking him on his side. As

the effort to subdue Briley continued, Briley placed another

kick -- this time, harder -- into Brancato’s abdomen. Brancato

                                        4
later   suffered      from    impairment         of    his     pancreas      and    lost    his

gallbladder.

      Briley eventually agreed to exit the vehicle, but as soon

as he stepped out, the struggle resumed. Briley moved his arms

to    keep   the   officers        from    handcuffing            him   and    assumed       an

aggressive     stance.        Brancato       sought          to     control     Briley      by

attempting to grab his shoulder, but instead hit him on the side

of the head. Briley then rushed toward both Brancato and Usher

and pushed them backward. Even as Brancato slung his arm over

Briley’s     shoulder,       Briley      managed       to    drag    Brancato       --    until

Twiname joined the fray along with Usher, and they all tumbled

to the ground. After further tussling with Briley on the ground,

the   officers     placed     him     in   handcuffs.          Briley     finally        ceased

resisting. He subsequently denied punching or kicking anyone,

and he said he did not know whether these individuals were in

fact police officers.



                                            B.

      A grand jury indicted Briley in the Eastern District of

Virginia. In the superseding indictment, the government alleged

three   violations      of    18    U.S.C.       §    111(a)      for   Briley’s     conduct

against the officers, as well as disorderly conduct. Count 1

charged      Briley    with        the     felony       of        forcibly     assaulting,

resisting,     opposing,       impeding,         and    interfering          with    Officer

                                             5
Brancato while making physical contact. Count 2 charged him with

the    felony     of    forcibly     resisting,            opposing,      impeding,        and

interfering      with    Officer     Usher         while   making      physical      contact

(but omitted a specific allegation of assault). Count 3 charged

him    with     the    misdemeanor        of       forcibly      resisting,       opposing,

impeding,      and     interfering    with         Officer      Twiname    (but      omitted

specific      allegations     of    either         assault      or   physical     contact).

Last, Count 4 charged him with the misdemeanor of disorderly

conduct for recklessly creating a risk of causing public alarm,

nuisance,      jeopardy,      and    violence        by    engaging       in    an   obscene

display and act within federal land administered by the National

Park Service, in violation of 36 C.F.R. § 2.34(a)(2).

       During    a     two-day     jury   trial,       Briley        contested       all   the

counts against him. The defense moved to dismiss Counts 2 and 3

on    the   ground     that   the    government           had    failed    to    allege    an

“assault” in those instances, but the district court denied the

motion. For Count 1, the district court instructed the jury that

the government had to prove that Briley “forcibly assaulted,

resisted,       opposed,      impeded,         or     interfered          with”      Officer

Brancato. J.A. 424 (emphasis added). For Counts 2 and 3, the

court told the jury that it was “not necessary to find assault”:

the government had to prove only that Briley “forcibly did any

one of the several alternative acts as charged” toward Officers

Usher and Twiname. J.A. 426.

                                               6
       The district court allowed the government, under Federal

Rule    of    Evidence        404(b),    to       introduce   evidence     of    other

instances in which officers had caught Briley engaging in public

sexual activities within federal parklands -- including conduct

that occurred after the underlying January 2012 incident. The

defense      objected    to    the    introduction       of   Briley’s    prior    and

subsequent      acts,    but    was     overruled.      The   court    allowed     this

evidence as “well within the wheelhouse of permissible testimony

under Rule 404(b).” J.A. 57.

       Although the government initially asked to introduce the

evidence of prior and subsequent acts as part of its case-in-

chief, it ended up calling the apprehending officers to testify

on rebuttal, after Briley’s own testimony. To help satisfy the

elements      of   the   disorderly          conduct    charge,     the   government

presented evidence of Briley’s prior citations for masturbating

in public restrooms (in the Marina area in 2000, and at another

nearby federal park in 2001).

       In    addition,        the    court        permitted   the     government     to

introduce evidence of Briley’s conduct approximately two months

after the underlying altercation. On March 20, 2012, Officer

Enrique Wong had spotted Briley in the same Marina parking area

engaging in sexual activities with another man in the same SUV.

Wearing a police uniform and driving a marked police cruiser,

Wong found Briley nearly naked, putting on his pants, with the

                                              7
vehicle’s front seats reclined. Wong arrested Briley and the

other man without resistance or further incident. At separate

bench trials, both were found guilty of disorderly conduct for

this activity.

      The jury convicted Briley on all four counts. 1 The district

court sentenced him to a prison term of seventy-eight months,

with the sentences for the various counts running concurrently.

The   court   also    imposed   a    term   of    three    years   of    supervised

release and ordered Briley to pay $62,306.10 in restitution. The

lion’s share of that sum, $54,849.91, was directed to Officer

Brancato.     After   hearing   expert      medical       testimony,     the    court

concluded     that    the   trauma    from       Briley’s    kicks      had    caused




      1
       Before the court gave the final charge to the jury, Briley
asked it to add “sexual orientation” to the instructed list of
factors (“race, color, religion, national ancestry, or gender”)
that should not influence the jury. The government did not
object, and the court stated that it would add the term to the
jury instruction “out of an abundance of caution.” J.A. 304. In
the actual instruction, however, the court omitted the term. The
defense did not object to the instruction at the time. Notably,
the court had questioned prospective jurors during voir dire
about their bias regarding sexual orientation, and it had issued
an opening instruction to the jury not to be influenced by
prejudices against either party. During closing arguments, the
government referenced the court’s planned instruction and told
the jury that Briley was “not on trial” for his sexual
orientation. J.A. 393. We find no error on this point. Briley
further argues that “this failure simply underscores and
magnifies the impact of the improperly admitted and prejudicial
subsequent acts propensity evidence,” Appellant’s Reply Br.
at 28 n.8 -- a point we address in Part III, infra.


                                        8
Brancato’s pancreatitis, which in turn had compelled the removal

of his gallbladder. Briley now appeals his convictions.



                                           II.

      Briley first contends that assault is a required element of

the 18 U.S.C. § 111(a) offenses alleged in Counts 1, 2, and 3.

He   maintains   that       the   government     failed   to   charge   an   actual

violation of § 111(a) in Counts 2 and 3, and that the district

court’s failure to mandate a specific finding of assault rather

than other predicate acts vitiated the convictions on all three

counts.    We   find   no    merit    in   Briley’s   argument.    The   district

court read the statute properly.



                                           A.

      Section 111 protects both the physical safety of federal

officers and the integrity of their functions. See United States

v. Feola, 420 U.S. 671, 678-79 (1975). Indeed, through § 111

Congress    wanted     to    afford    “uniformly     vigorous    protection    of

federal personnel” to the ”maximum” degree. Id. at 684. Under

the heading “Assaulting, resisting, or impeding certain officers

or employees,” the statute provides:

      (a) In General. -- Whoever --

            (1) forcibly assaults, resists, opposes, impedes,
            intimidates,  or   interferes  with   any  person
            designated in section 1114 of this title while

                                            9
             engaged in or on account of the performance of
             official duties; or

             (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. The individuals designated in §§ 111(a)(1) and

(2) include “any officer or employee of the United States or of

any agency in any branch of the United States Government,” such

as a U.S. Park Police officer. Id. § 1114.

      Several features are immediately evident from the statutory

structure.    One   is   the   type   of    officials    who   are   protected.

Subsection 111(a)(1) applies to individuals actually engaged in

the performance of official duties, while § 111(a)(2) applies to

those formerly engaged in such duties. The relevant acts differ

for   current    officials     in     § 111(a)(1)       (“forcibly    assaults,

resists,     opposes,    impedes,     intimidates,      or   interferes”)   and


                                       10
former        officials         in     § 111(a)(2)        (“forcibly          assaults       or

intimidates”). Id. § 111(a)(1), (2).

       Another important feature is the statute’s graded penalty

structure. The punishments increase with the severity of the

crime. The final paragraph of § 111(a) provides that, “where the

acts     in      violation      of     this     section    constitute         only    simple

assault,” a person has committed a misdemeanor, punishable by up

to one year in prison. Id. § 111(a). Next, where the acts in

violation        of    § 111    entail        either    “physical    contact        with   the

victim      of    that       assault”     or     “the    intent     to   commit       another

felony,” a person has committed a felony, punishable by up to

eight    years        in   prison.     Id.     Moving    another    step      up,    § 111(b)

specifies that, where a person performs “any” of the violative

acts outlined in § 111(a) and also either “uses a deadly or

dangerous weapon” or “inflicts bodily injury,” that person has

committed a felony, this time punishable by up to twenty years

in prison. Id. § 111(b); see also United States v. Campbell, 259

F.3d 293, 299 (4th Cir. 2001).

       In     essence,       § 111     proscribes       five    types    of    offenses:      a

misdemeanor (constituting only simple assault), two less serious

felonies         (involving          either     physical       contact     or       felonious

intent),       and     two     more    serious       felonies     (involving        either   a

weapon or bodily injury). Notably, in defining the penalties for

the various offenses, each statutory provision refers back to

                                                11
the original list of violative acts against current or former

officials. 18 U.S.C. § 111(a) (“the acts in violation of this

section”); id. (“such acts”); id. § 111(b) (“any acts described

in subsection (a)”). For any of the § 111 penalty provisions,

then, a jury must find every element of a charged offense proved

beyond a reasonable doubt, for each step on the scale increases

the maximum statutory punishment. See Apprendi v. New Jersey,

530 U.S. 466, 490 (2000); Jones v. United States, 526 U.S. 227,

232    (1999);      see    also   Campbell,        259    F.3d       at    299     (“§ 111(b)

‘provide[s]         for      steeply        higher        penalties,’             which        are

‘condition[ed]        on     further    facts       . . .       that       seem     quite      as

important      as    the   elements’     of       the    principal         crime       found    in

§ 111(a).” (alterations in original) (quoting Jones, 526 U.S. at

233)).

       A number of observations emerge from this analysis of the

statutory      structure.      First,    because         Briley’s         actions      involved

current Park Police officers undertaking their official duties,

all    six   verbs    listed      in   the    disjunctive            in   § 111(a)(1)          are

available. Second, the contours of the three § 111(a) counts

come    into   sharper       relief.    Counts       1   and     2    alleged       “physical

contact”       felonies       against        Officers       Brancato             and      Usher,

respectively,        while     Count    3     alleged       a    misdemeanor            against

Officer Twiname. By the terms of § 111(a), either a misdemeanor

or a “physical contact” felony may arise from any of “the acts

                                             12
in violation of this section” -- namely, forcibly assaulting,

resisting, opposing, impeding, intimidating, or interfering with

current officers such as these. And third, the district court

squarely instructed the jury that the government shouldered the

burden    of   proving    beyond   a     reasonable         doubt   that     Briley    had

“committed each and every element of the offense charged in the

indictment.” J.A. 420. The jury then returned a verdict finding

Briley guilty on all three § 111 counts. Although the statute is

written disjunctively (“or”), the jury found Briley guilty on

counts that were worded conjunctively (“and”).



                                             B.

      Briley now argues that assault is a required element not

only of the misdemeanor in § 111(a), but also of the statute’s

“physical      contact”    felony.       Although          the   government       charged

assault as part of the felony in Count 1 (against Brancato), it

chose not to charge assault for either the felony in Count 2

(against Usher) or the misdemeanor in Count 3 (against Twiname).

For   several    reasons,    we    do    not       think    assault   is     a   required

element.

      First, Briley’s reading renders a slew of verbs in § 111(a)

largely     surplusage.     When        we        interpret      statutes,       we   must

“construe all parts to have meaning.” PSINet, Inc. v. Chapman,

362 F.3d 227, 232 (4th Cir. 2004). We avoid interpretations that

                                             13
would   turn    some    statutory     terms    into    nothing        more   than

surplusage. United States v. Medina, 718 F.3d 364, 367 n.1 (4th

Cir. 2013); In re Total Realty Mgmt., LLC, 706 F.3d 245, 251

(4th Cir. 2013). Subsection 111(a) expressly covers a person who

“forcibly assaults, resists, opposes, impedes, intimidates, or

interferes     with”   a   federal     official.      18   U.S.C.      § 111(a).

Briley’s reading would render five of those six words -- all but

“assault” -- inoperative with respect to both the misdemeanor

and the “physical contact” felony. We must, however, ascribe

meaning to the five remaining verbs.

      Second, and relatedly, Briley’s assessment of § 111 wanders

too far from congressional intent. Congress enumerated these six

verbs   in   the    disjunctive.     Why   would   Congress,     in    the   same

subsection, then swiftly render five of these verbs extraneous

or defunct? The statute, moreover, consistently references the

same set of all six alternative verbs for each penalty provision

-- “the acts in violation of this section” for the misdemeanor

in § 111(a), “such acts” for the lesser felonies in § 111(a),

and   “any   acts   described   in    subsection    (a)”   for   the     greater

felonies in § 111(b). Those phrases obviously denote all six

verbs. Why would Congress repeatedly refer back to the same list

of threshold acts for every designated offense, and yet covertly

assign varying acts to different crimes? The obvious answer is

that Congress had no such intention: a person could commit any

                                      14
one    of   these     six    acts   and    still      fall    under      the    statute’s

coverage.

       Third,    Briley’s       interpretation        rips    a    big    hole    in   the

statutory     scheme.       Although   his      reading      largely     preserves     the

protections for the physical safety of federal officials, it

leaves those officials without protection for the carrying out

of federal functions. It misses the crucial point that § 111

safeguards      not     only     physical       safety,      but     also      functional

integrity.      See    Feola,    420   U.S.      at   678-79.      More     broadly,   it

undercuts       the     statute’s         mandate      of     full       and     vigorous

enforcement. See id. at 684.

       Fourth, Briley’s take on § 111 produces an absurd result.

His reading would allow an individual to commit an array of

forcible     acts     against    federal     officials       performing        government

functions without criminal consequence. That person could use

force to resist federal officials, to oppose them, to impede

them, to intimidate them, and to interfere with them -- and yet

escape the reach of § 111. Apparently, such a person could evade

sanction so long as he or she did not also (1) act with the

intent to commit another felony, (2) use a deadly or dangerous

weapon, or (3) inflict bodily injury. See Appellant’s Br. at 14.

That   too    leaves     a    patchwork      statute,       not    the    comprehensive

protections Congress intended.



                                           15
       Finally, although some of our sister circuits have read

§ 111 somewhat differently, the operative distinctions between

those approaches and the conclusion we draw today are limited.

Some circuits have agreed with us that § 111 prohibits the six

different kinds of enumerated acts and that, specifically, the

misdemeanor provision is not limited to assault. United States

v. Williams, 602 F.3d 313, 317-18 (5th Cir. 2010); cf. United

States v. Gagnon, 553 F.3d 1021, 1027 (6th Cir. 2009) (adding

that “Congress . . . used the phrase ‘simple assault’ as a term

of art to incorporate the actions proscribed in § 111(a)(1) and

§    111(a)(2)”).    The   Second     Circuit   has     taken    an   ostensibly

varying view of § 111 and concluded that some form of “simple

assault”    is    required     for   the    misdemeanor    provision.     United

States v. Davis, 690 F.3d 127, 135 (2d Cir. 2012) (“[F]or a

defendant to be guilty of the misdemeanor of resisting arrest

under Section 111(a), he necessarily must have committed common

law   simple     assault.”).    Whatever    variance    the     latter   decision

manifests arises seemingly from facts that involved primarily

passive resistance toward all the officers involved, compared

with Briley’s active, forcible actions against the Park Police.

See Davis, 690 F.3d at 129-30 (“Davis did not fight back. . . .

There was no evidence that Davis threatened or struck out at any

of    the   agents.”).     Given     the    statute’s     crucial     adverb   --

“forcibly” -- the factual distinctions are significant. Facts of

                                       16
the   more     passive   kind     fall      much    closer    to    the      nonforcible

borderline.        Whatever     daylight         lies     between      the      circuits’

approaches, it seems to us that the practical distinction is not

a large one.

        For those reasons, it was proper for the district court to

instruct the jury that Briley could have committed any of the

threshold acts charged -- not “assault” only -- to be found

guilty of a § 111 offense, so long as the other elements of the

offense were satisfied.



                                         III.

        Briley    also   argues      that     the       district    court       erred   in

admitting evidence of a subsequent crime under Federal Rule of

Evidence       404(b).   Over   the    defense’s          objection,      the    district

court allowed the government to introduce evidence of Briley’s

conduct at the same Washington Sailing Marina parking area in

March 2012, about two months after the underlying incident. A

Park Police officer had observed Briley and another man engaging

in sexual activities in the same SUV. He arrested both men and

faced     no     resistance.    At    trial,        the     government       sought     to

introduce evidence of the March arrest to show Briley’s reckless




                                            17
intent for the disorderly conduct alleged in Count 4. 2 We do not

think this evidence should have been admitted. But given the

overwhelming evidence from the underlying January incident, we

find no reversible error.



                                            A.

       Under Rule 404(b), “[e]vidence of a crime, wrong, or other

act is not admissible to prove a person’s character in order to

show       that    on   a    particular     occasion    the    person   acted    in

accordance with the character.” Fed. R. Evid. 404(b)(1). Such

evidence, however, “may be admissible for another purpose, such

as     proving      motive,      opportunity,     intent,     preparation,   plan,

knowledge, identity, absence of mistake, or lack of accident.”

Id. 404(b)(2).

       Rule       404(b)    is   a   rule   of   inclusion.    United   States   v.

Lespier, 725 F.3d 437, 448 (4th Cir. 2013); see United States v.


       2
       The National Park Service regulation invoked in Count 4
provides:

       A person commits disorderly conduct when, with intent
       to cause public alarm, nuisance, jeopardy or violence,
       or knowingly or recklessly creating a risk thereof,
       such person . . . [u]ses language, an utterance, or
       gesture, or engages in a display or act that is
       obscene, physically threatening or menacing, or done
       in a manner that is likely to inflict injury or incite
       an immediate breach of the peace.”

36 C.F.R. § 2.34(a)(2).


                                            18
Van Metre, 150 F.3d 339, 349 (4th Cir. 1998) (noting that the

Rule’s list of allowable purposes is “illustrative, rather than

exclusive”). As we have long maintained, the Rule’s inclusive

nature militates toward “‘admitting all evidence of other crimes

or   acts    except    that    which    tends      to     prove    only     criminal

disposition.’” Lespier, 725 F.3d at 448 (quoting United States

v. Rooks, 596 F.3d 204, 211 (4th Cir. 2010)); see, e.g., United

States v. Masters, 622 F.2d 83, 85 (4th Cir. 1980). Rule 404(b)

permits the admission of evidence of not only prior but also

subsequent acts. United States v. Mohr, 318 F.3d 613, 617 (4th

Cir. 2003).

     We do not overturn Rule 404(b) rulings lightly. District

judges enjoy broad discretion to determine what evidence should

be admitted under the Rule, which resides at the core of the

trial judge’s function of handling evidentiary challenges. Under

this standard, a district court abuses its discretion “‘when it

acts arbitrarily or irrationally, fails to consider judicially

recognized     factors   constraining        its      exercise     of    discretion,

relies on erroneous factual or legal premises, or commits an

error of law.’” Rooks, 596 F.3d at 210 (quoting United States v.

Delfino, 510 F.3d 468, 470 (4th Cir. 2007)).

     We     review   evidentiary   determinations          for    harmless     error.

United States v. Madden, 38 F.3d 747, 753 (4th Cir. 1994). A

nonconstitutional      error   ceases       to   be     harmless    if    it   had   a

                                       19
“substantial and injurious effect or influence in determining

the jury’s verdict.” Kotteakos v. United States, 328 U.S. 750,

776   (1946).   The    core      of     the    inquiry          is    whether    the       error

affected the defendant’s substantial rights. See Fed. R. Crim.

P.    52(a).    We    do      not       reverse           evidentiary         rulings         for

inconsequential      technicalities.               Rather,      “reversal       is    reserved

for more serious errors that affect substantial rights or that

directly    affect    the     outcome         of     a    case.”       United    States       v.

Ferguson, 752 F.3d 613, 619 (4th Cir. 2014).



                                              B.

      While Rule 404(b) is an inclusive rule, it is not all-

inclusive. The “other bad act” admitted in this instance came

too close to pure propensity evidence.

      The   relevance       of    the       March        2012      evidence     to     proving

Briley’s    intent    or    state      of    mind        in   January    stands       in   some

question. It is true that we make “no distinction” between prior

and   subsequent     bad   acts       under    Rule       404(b),      United        States   v.

Lighty, 616 F.3d 321, 352 n.33 (4th Cir. 2010), with the timing

of the act often being a matter of evidentiary weight for the

jury, see Huddleston v. United States, 485 U.S. 681, 689 (1988);

United States v. Hadaway, 681 F.2d 214, 217-18 (4th Cir. 1982).

And   the   January    and       March      episodes          do     share    some     similar

features. Both times, the Park Police found Briley engaging in

                                              20
sexual conduct, in the same vehicle, in the same general area.

At another level, however, the character of the acts was quite

different.      The      March      incident         was    largely          uneventful.          When

confronted by Officer Wong, Briley did not resist arrest. The

January      incident,        on    the      other         hand,       involved        a     violent

confrontation that went to the heart of the obstructive activity

charged under 18 U.S.C. § 111.

       The     evidence         from     January           formed        a    compelling           and

consistent      case     against       Briley        on    all    four       counts.       The    jury

heard about the encounter and the ensuing altercation with Park

Police in painstaking and vivid detail. The January evidence

described      Briley’s         meeting       with         his     companion          and        their

preparations        to     engage      in    sexual        relations.          It    showed       the

extended struggle between Briley and the crew of officers trying

to    detain   him.      It   conveyed       his      determined         resistance          to    the

officers both inside and outside the vehicle. It revealed the

damaging injuries he inflicted on the officers. As officer after

officer      took    the      witness       stand,        and     as     Briley’s          companion

recounted the events inside the vehicle, the jury learned about

the January incident from every angle.

       The government introduced the March arrest in support of

the    disorderly        conduct       charge    in       Count     4.       But    even     with   a

recognition         of    the      uncertainties            of     trial       outcomes,           the

prosecution had to know it had more than enough evidence from

                                                21
the January incident alone to prove that Briley had engaged in

an unlawful act at the Marina, in violation of the disorderly

conduct regulation. The district court told the jury that Briley

could be deemed to have acted recklessly, as required by 36

C.F.R.    §   2.34(a)(2),     if     he    knew    that       the    obscene    act    was

“inappropriate”        and    that        it    would       “cause     public        alarm,

[nuisance], jeopardy, or violence if it was seen.” J.A. 430.

From the January incident, there was more than ample evidence

for a rational jury to conclude that Briley’s conduct cleared

that modest bar. With so few lingering questions about Briley’s

criminal conduct in January, and the evident ability of intimate

sexual    activities     in   public       places      to     constitute   disorderly

conduct on their own terms, the need to introduce the March

incident seems dubious at best. See United States v. Queen, 132

F.3d 991, 997 (4th Cir. 1997) (listing necessity as a factor in

Rule 404(b) analysis).

       Also relevant in the Rule 404(b) analysis is the comparison

of the probative value and prejudicial nature of the evidence.

See Fed. R. Evid. 403; Queen, 132 F.3d at 997 (holding that, as

part of the Rule 404(b) inquiry, “the evidence’s probative value

must   not    be   substantially      outweighed         by    confusion       or    unfair

prejudice in the sense that it tends to subordinate reason to

emotion in the factfinding process”). In Briley’s case, there

was    some   slight   probative      value       to    the    evidence.       The   March

                                           22
arrest did bear some connection to the purposes for which it was

offered, in the sense that it underscored Briley’s recklessness,

as required by the disorderly conduct regulation.

      On the other hand, there was a risk in using the March

incident at trial. That risk inheres in all propensity evidence,

namely that the government could deploy the subsequent act as a

character smear that might actually infect the entirety of the

trial -- by portraying the defendant in the eyes of the jury as

a     person      deserving        of     particular         condemnation        almost

irrespective      of    the   various     forms   of    misconduct      of     which    he

stood    accused.      But    of   course    Rule     404(b)       expressly    forbids

evidence to be used in that way. The March evidence carried a

risk of shifting the trial’s focus away from the confrontation

whose    violent       and    injurious     nature     had    given    rise     to     the

prosecution, and toward the portrayal of a character of general

disrepute. Given that there was more than enough evidence from

the     January    incident        to   support      all     the    charges     in     the

indictment, including the disorderly conduct charge, the need to

push the defendant’s personal habits and inclinations forward

raises Rule 403 concerns.

      The trouble with such character wounds is that they bleed,

in the sense that “bad people” may be presumed by the factfinder

to commit no end of criminal acts. The government unquestionably

had every right to charge Count 4. But to use this least serious

                                            23
charge as a conduit for bringing in unseemly acts not charged in

the indictment -- which then might affect consideration of the

more serious charges -- is a different matter. Shining such a

bright    light        on    Briley’s       other       sexual     activities     risked

directing the jury’s attention to the wrong place.

     Nevertheless, the evidence from the beginning to the end of

the January incident is compelling and incriminating as to all

the charged counts. When viewed in the context of the barrage of

evidence from the January incident -- for the disorderly conduct

charge    as    well    as   the    three    § 111       charges    --    the   error    in

admitting the March evidence was plainly harmless.

     An     array       of    witnesses       gave       clear,     compelling,         and

consistent accounts about Briley’s actions. Officers Brancato,

Usher, Mace, and Twiname each testified about the events of that

January        afternoon.         Brancato        and    Usher      discussed      their

surveillance of Briley and the other man, and they described

Briley’s sexual conduct that was visible from outside, through

the SUV’s window. The four officers recounted the details of the

altercation that followed -- the initial approach, the swift

compliance by Briley’s companion, Briley’s refusal to exit, his

fierce resistance against being removed from the vehicle, his

injurious        strikes       against       the        officers,        the    continued

skirmishing       after      he    exited    the     vehicle,      and    his   eventual

arrest. Briley’s companion (who had signed an informal immunity

                                             24
agreement) also testified about his interactions with Briley and

the officers. He related his personal history with Briley, their

meeting    in     the   Marina    parking        area,   their       preparations      for

sexual    relations,      their   efforts        to   avoid     detection,      and    the

confrontation with the Park Police.

     It is plain that the jury credited the version of the facts

put forward by the Park Police and by Briley’s own companion and

disbelieved Briley’s version of the incident, namely that he did

not punch or kick anyone and was unaware the individuals were

police officers. A plethora of testimony established that Briley

had engaged in intimate sexual activities in a public place, and

that he had forcibly resisted and struck the officers trying to

arrest     him.    The     district     court,        for      its    part,    properly

instructed      the     jury   under   § 111       and   the    disorderly          conduct

regulation and offered a range of other cautionary directives.

     We can say, “with fair assurance, after pondering all that

happened without stripping the erroneous action from the whole,”

that the jury’s consideration was not “substantially swayed” by

Officer Wong’s testimony about the March incident. Kotteakos,

328 U.S. at 765. The absence of necessity for admitting “other

bad acts” evidence will not invariably link up with a finding of

harmless    error,       but   here    we    are      confident      that     the    error

affected neither Briley’s substantial rights nor the outcome of

the case. See Ferguson, 752 F.3d at 619. Despite the evident

                                            25
dangers of admitting the evidence, we are not left in “grave

doubt” about its impact. Kotteakos, 328 U.S. at 765. Our charge

is to detect wrongs that trenched upon a defendant’s substantial

rights, and the error did not do so here.



                               IV.

     For the foregoing reasons, the judgment is affirmed.

                                                            AFFIRMED




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