                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4902


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DAVID MICHAEL GERALD,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:13-cr-00192-LO-1)


Submitted:   October 29, 2014             Decided:   January 13, 2015


Before GREGORY and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Lance A. Wade, Evan M. Mendelson, WILLIAMS & CONNOLLY LLP,
Washington, D.C., for Appellant. Dana J. Boente, Acting United
States Attorney, Matt J. Gardner, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             David Michael Gerald appeals from his conviction of

assaulting,     resisting,      opposing,      impeding,    intimidating,     or

interfering with a federal officer, in violation of 18 U.S.C.

§ 111(a) (2012).          He argues that the district court erred in

failing to instruct the jury that it could convict him under the

“physical contact” prong of § 111(a) only if it found that he

had assaulted the officer (“the assault issue”). Gerald further

contends     that   the    district    court    abused     its   discretion   by

choosing to answer a jury question about the lawfulness of the

officer’s actions and by the content of that response.                  Finding

no error, we affirm.

             As to the assault issue, ordinarily we review jury

instruction de novo.        United States v. Powell, 680 F.3d 350, 355

(4th Cir. 2012).      If, however, the defendant failed to object to

the instruction on the basis asserted on appeal, our review is

for plain error.          United States v. Jeffers, 570 F.3d 557, 569

(4th Cir. 2009).          Although the parties disagree as to whether

Gerald preserved the assault issue, we need not resolve this

dispute because the district court’s instruction was proper even

under de novo review.

             We recently held that it is “proper for the district

court   to   instruct     the   jury   that    [the   defendant]    could   have

committed any of the threshold acts charged—not ‘assault’ only—

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to be found guilty of a § 111 offense, so long as the other

elements    of   the    offense   were     satisfied.”            United     States    v.

Briley, ___ F.3d ___, 2014 WL 5355522, at *6 (4th Cir. Oct. 22,

2014).     The district court here instructed the jury that it

could convict Gerald if it found that he forcibly assaulted or

resisted or opposed or impeded or interfered with the officer.

It further instructed that the Government need prove that Gerald

forcibly    committed     only    one     of    the    several     alternative       acts

charged.    Because these instructions comport with our holding in

Briley, we find no error.

            Gerald       also     challenges           the        district      court’s

supplemental instruction.           During deliberations, the jury asked

the district court to clarify whether a push from an officer was

lawful.      The     district     court,        although      observing      that     the

question was vague and unclear, concluded that it could respond

generally on the law, and it informed the jury that the right to

detain or arrest carries with it the right to use the amount of

force     that   a     reasonable       officer       would       objectively       think

necessary to effect the arrest.                Gerald argues that the district

court should not have answered the question at all because it

was vague, and further that any response should have included

factors drawn from a model jury instruction.

            We review the propriety of this instruction for abuse

of   discretion.       Jeffers,     570    F.3d       at   566.     In   providing      a

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supplemental instruction in response to a jury question, “the

district court’s duty is simply to respond to the jury’s source

of confusion fairly and accurately without creating prejudice.

The particular words chosen, like the decision whether to issue

any clarification at all, are left to the sound discretion of

the district court.”       United States v. Smith, 62 F.3d 641, 646

(4th Cir. 1995) (citation omitted).

              We perceive no abuse of discretion in the district

court’s decision to respond to the jury’s inquiry or in the

content of that response.        The district court acknowledged that

the facts underpinning the question were unclear, but concluded

that the general law applicable to such scenarios was not.                 It

drew   upon    language   from   the   Supreme   Court     in   drafting   its

supplemental instruction.         See Graham v. Connor, 490 U.S. 386

(1989).   This claim is therefore unavailing.

              Accordingly, we affirm the district court’s judgment.

We   dispense    with   oral   argument    because   the   facts   and   legal

contentions are adequately presented in the material before this

court and argument will not aid the decisional process.

                                                                    AFFIRMED




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