                          In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-1878

U NITED S TATES OF A MERICA,
                                             Plaintiff-Appellee,
                               v.

Y ORK W ILSON,
                                         Defendant-Appellant.


            Appeal from the United States District Court
                 for the Southern District of Illinois.
      No. 3:11-cr-30104-001-GPM—G. Patrick Murphy, Judge.



   A RGUED S EPTEMBER 21, 2012—D ECIDED O CTOBER 19, 2012




 Before P OSNER, K ANNE, and S YKES, Circuit Judges.
  P OSNER, Circuit Judge. The defendant, an inmate of
the Federal Correctional Institution at Greenville in
southern Illinois, was convicted by a jury of “assault
resulting in serious bodily injury” on another inmate, in
violation of 18 U.S.C. § 113(a)(6), and was sentenced to
46 months in prison. He argues that he did not inflict
a “serious” bodily injury on his victim, and he also com-
plains about the judge’s refusal to give an instruction to
the jury on self-defense.
2                                              No. 12-1878

  The term “serious bodily injury” is defined in 18 U.S.C.
§ 1365(h)(3) as “bodily injury which involves” “a substan-
tial risk of death,” “extreme physical pain,” “protracted
and obvious disfigurement,” or “protracted loss or im-
pairment of the function of a bodily member, organ, or
mental faculty.” The definition was added in 1983 to
a statute that punishes “tampering with consumer prod-
ucts” and at first had no application to the assault stat-
ute. But in 1994 section 113 was amended to incor-
porate the definition of “serious bodily” injury in sec-
tion 1365(h)(3); see § 113(b)(2). Until then, the assault
statute had left “serious bodily injury” undefined.
  The jury could have found the following facts. The
defendant is a black Muslim. A cellmate and close
friend, also a Muslim, was attacked by Mexican in-
mates. The prison has many Muslim and Mexican
inmates, and the prison authorities, fearing that the
attack might precipitate a riot, ordered that all the
inmates be locked in their cells. The defendant’s
cellmates included a Mexican named Efrain Rodriguez.
Suddenly, without any provocation, the defendant, a
much larger man, attacked Rodriguez—punched him,
kicked him in the head with his steel-toe boots, stomped
on him when Rodriguez fell to the floor, and slammed
Rodriguez’s head into a bunk. Rodriguez made no
effort to defend himself, which apparently would have
been futile given the defendant’s size and ferocity. None
of the other five cellmates intervened; they were afraid of
the defendant. Rodriguez had not participated in the
Mexicans’ assault on the defendant’s Muslim cellmate,
No. 12-1878                                                  3

but the defendant considered him, as a Mexican, an
appropriate target of revenge for the assault. (That is
what is called “collective punishment.”)
  When rescued by guards, Rodriguez was conscious
but dazed. He may have been unconscious during part
of the assault—he probably had suffered a concussion,
which might or might not cause a complete loss of con-
sciousness. He was bloody, had difficulty walking,
there were two large lacerations on his forehead that
required 16 stitches to close, there was bruising behind
his ear, and he had scratches, abrasions, and contusions.
His nose was broken and his eyes swollen shut and
he complained of headache and of pain in his face
and shoulders. Two weeks later he was still having head-
aches, he had several loose teeth, and his bruises and
lacerations had not healed completely. He was having
difficulty sleeping and difficulty thinking and exhibited
signs of post-traumatic stress syndrome, for which
Zoloft was prescribed. These symptoms had not disap-
peared by the time of the defendant’s trial six months
later, nor the scars on the victim’s face from the lacerations.
  Wilson might have killed Rodriguez with his steel-
toe boots. We were told at oral argument that the
prison requires the inmates to wear these boots (unless
they have a special permit), even when the inmates are
in their cells, despite the acute racial, ethnic, and religious
tensions among the inmate population. The defendant’s
cell contained a mixture of Muslims and Mexicans. The
prison manufactures army combat uniforms, and the
boots are used in unexplained ways in that manu-
4                                             No. 12-1878

facture, but why the inmates are permitted, let alone
required, to wear them outside the manufacturing
facility baffles us.
  Picking through the definition of “serious bodily in-
jury,” the defendant denies that his assault on Rodriguez
created “a substantial risk of death,” inflicted “extreme
physical pain,” caused “protracted and obvious disfigure-
ment,” or caused a “protracted loss or impairment of
the function of a bodily member, organ, or mental fac-
ulty.” He thus denies that the statute permits a holistic
or aggregative assessment of the gravity of the injury
in a case such as this in which the assault creates
a risk of death, inflicts considerable physical pain,
causes visible scarring, and may have inflicted sig-
nificant psychological injury.
  The statute thus illustrates the limits of definition as
a legal tool. Left undefined, the term “serious bodily
injury” is intuitive—a concept jurors can understand
and apply. Congress’s attempt at definition added
useless, confusing complexity.
  It is an occupational hazard of lawyers to seek clarity
by adding words. Refusing to elaborate to a jury the
meaning of “reasonable doubt” is a rare example of a
wise acknowledgment of the limitations of definition.
Congressional drafters would have been wise to
exercise similar verbal self-restraint with regard to
“serious bodily injury.” It’s true that before Congress
defined it many judges were not content to leave
well enough alone, but elaborated the term in their jury
instructions, influenced by the fact that state assault
statutes tended to elaborate it, in the spirit as it were
No. 12-1878                                             5

of section 1365(h)(3). Thus in United States v. Johnson,
637 F.2d 1224, 1246 (9th Cir. 1980), we read that
“a jury should be instructed to use its common sense in
deciding whether the injuries constitute serious bodily
injury. Among the factors the jury should consider are
whether the victim suffered extreme physical pain, pro-
tracted and obvious disfigurement, protracted loss or
impairment of the function of a bodily member, organ, or
mental faculty, protracted unconsciousness, and sig-
nificant or substantial internal damage (such as im-
portant broken bones).”
  Before the definition was added to the statute we
had explained that “there is no mystery to the words
‘serious bodily injury,’ ” and had approved instructing
the jury that to find a “serious bodily injury” it would
have to find that the victim’s injury was “more than
slight and of a grave and serious nature.” United States
v. Webster, 620 F.2d 640, 642 (7th Cir. 1980). That is all
the instruction a jury needs.
  We reject the argument that no reasonable jury could
have found that the defendant’s assault on Rodriguez
inflicted serious bodily injury as defined in section
1365(h)(3). Indeed a jury could find all four subdefini-
tions satisfied. One cellmate testified that he told the
defendant during the fight to stop lest he kill Rodriguez
and that in reply the defendant had said that that was
what he was trying to do. The medical personnel were
sufficiently alarmed by Rodriguez’s symptoms to take
precautions against the possibility that he had trauma
to his head, bleeding inside his skull, and a broken
6                                               No. 12-1878

neck. The beating, and the stomping with steel-toe boots,
could well be found to have inflicted extreme pain
until Rodriguez lost consciousness (if he did); facial
scars present after six months could be found to be
“protracted and obvious disfigurement”; and the im-
pairment of his “mental faculty” also had not dissipated
over that period. Cf. United States v. Peneaux, 432 F.3d
882, 890-91 (8th Cir. 2005); United States v. Two Eagle, 318
F.3d 785, 791-92 (8th Cir. 2003).
  Our conclusion is reinforced by a consideration of
other sections of the assault statute. The maximum sen-
tence for an assault that results in serious bodily injury
is 10 years in prison, while both “assault by striking,
beating, or wounding” and “simple assault” are punishable
by a maximum of only 6 months in prison. 18 U.S.C.
§§ 113(a)(4), (5). The ratio of maximum sentences for
assaults that do cause serious bodily injury to maximum
sentences for assaults that do not is thus 20 to 1, which
means that the defendant is arguing that his maximum
sentence should have been six months. That would be
a ridiculously light punishment for an assault of such
gravity. As we said in United States v. Webster, supra,
620 F.2d at 641, “we see no indication that Congress
intended to leave such an obvious structural gap pro-
viding only a nominal penalty for vicious assaults.”
Congress could not have intended by adding the defini-
tion of serious bodily injury to cap the punishment for
assaults of the gravity of the assault in this case at
six months’ imprisonment.
  As for the judge’s refusal to give a self-defense instruc-
tion, there was no basis for a defense of self-defense.
No. 12-1878                                               7

The defendant testified that he had seen Rodriguez with
a knife the day before the assault but not on the day of
the assault. There was no evidence that Rodriguez
had a knife when the defendant attacked him or that
he threatened the defendant. The defendant could not
have had a reasonable belief that he was in imminent
danger from Rodriguez, and without such a belief there
can be no defense of self-defense. E.g., United States v.
Haynes, 143 F.3d 1089 (7th Cir. 1998). The only “provoca-
tion” for the attack was Rodriguez’s nationality. Far from
being a basis for a defense of self-defense, the defendant’s
motive compounded the wrongfulness of his action.
He should be grateful that he didn’t receive a longer
sentence.
                                                 A FFIRMED.




                          10-19-12
