              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 12a0013n.06

                                      No. 09-6394

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT
                                                                                FILED

UNITED STATES OF AMERICA,                                                   Jan 06, 2012
                                                                      LEONARD GREEN, Clerk
       Plaintiff-Appellee,

              v.                                             On Appeal from the United
                                                             States District Court for the
RONALD COOKS,                                                Eastern District of Kentucky
                                                             at Pikeville
       Defendant-Appellant.


                                                       /

Before:       GUY, KETHLEDGE, and WHITE, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge.         D efendant R onald C oo k s a ppeals h is

conviction and sentence on one count of assaulting, resisting, and/or impeding federal

officers while engaged in the performance of official duties, in violation of 18 U.S.C. §

111(a)(1) and (b). For the reasons that follow, we affirm.

                                            I.

       On September 17, 2008, defendant, an inmate at the United States Penitentiary (USP),

Big Sandy, got involved in a confrontation with three other inmates in a corridor of the

facility and was charged with inflicting bodily injury on one or more federal officers who

intervened. Specifically, Officer Oliver Crum saw three black inmates, including the

defendant, beating a white inmate. Crum, who was standing 20 to 25 feet away, called for
No. 09-6394                                                                                  2

help and rushed toward the fight while shouting verbal commands for them to stop. Crum

pulled one inmate away, jumped in to break up the fight, and ended up on the ground holding

onto two inmates with the defendant over them. Other corrections officers who were nearby,

including Officers James Cantrell, Wesley Howard, and William Schlick, responded

immediately, yelled commands to stop fighting, and physically intervened to subdue the

defendant. Defendant, who took a punch at Crum on the ground, continued to resist and

struck Cantrell, Howard, and Schlick each in the head as they grabbed his arms.

        Crum suffered a fractured jaw, lacerations to the head, and bruising to his eyes and

nose, while Cantrell, Howard, and Schlick had busted lips, bruises, and/or scratches.

Defendant, who was not injured, testified that he did not hear any verbal commands and did

not recognize that those intervening were uniformed corrections officers. Defense counsel

also argued that defendant did not land the punch to Crum’s head. A security camera in the

corridor captured the brief melee (albeit without audio), and the recording was played for the

jury at trial.

        The one-count indictment charged that defendant “did forcibly assault, resist, oppose,

impede, intimidate, and interfere with [USP], Big Sandy, Correctional Officers James

Cantrell, Wesley Howard, Oliver Crum, and William Schlick, federal law enforcement

officers, inflicting bodily injury upon the officers, while the officers were engaged in the

performance of their official duties.” See 18 U.S.C. § 111(a)(1) and (b). The jury was

instructed that “‘forcible assault’ means any intentional attempt or threat to inflict injury

upon someone else, when coupled with an apparent present ability to do so, and includes any
No. 09-6394                                                                                     3

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

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

injured.” As for the term “bodily injury,” which triggers an enhanced penalty, the jury was

instructed that it means “(1) a cut, abrasion, bruise, burn, or disfigurement; (2) physical pain;

(3) the impairment of a bodily member, organ, or mental faculty; and/or (4) any other injury

to the body no matter how temporary.”

       The jury found defendant guilty at the conclusion of the one-day trial. The district

court sentenced defendant as a career offender to a within-Guidelines sentence of 220 months

of imprisonment, to run consecutively to the remaining undischarged term of imprisonment

that he was already serving. This appeal followed.

                                               II.

A.     Indictment

       “An indictment is duplicitous if it sets forth separate and distinct crimes in one count.”

United States v. Davis, 306 F.3d 398, 415 (6th Cir. 2002) (citing United States v. Campbell,

279 F.3d 392, 398 (6th Cir. 2002)). The decisive criteria for determining whether there is

duplicity in an indictment are legislative intent and separate proof. See United States v.

Damrah, 412 F.3d 618, 622 (6th Cir. 2005). “It is not duplicitous to allege in one count that

multiple means have been used to commit a single offense.” Id. “‘The vice of duplicity is

that a jury may find a defendant guilty on the count without having reached a unanimous

verdict on the commission of any particular offense.’” United States v. Hood, 210 F.3d 660,
No. 09-6394                                                                                  4

662-63 (6th Cir. 2000) (citation omitted).      The question of whether an indictment is

duplicitous is a legal question that we review de novo. Davis, 306 F.3d at 415.

       Defendant argues for the first time on appeal that the one-count indictment in this case

actually charged four separate offenses, one offense for each corrections officer named, and

created the potential for a non-unanimous verdict. Defendant’s reliance on the decision in

United States v. Castano, 543 F.3d 826 (6th Cir. 2008), is misplaced. Castano rested heavily

on the determination that 18 U.S.C. § 924(c) was intended to criminalize two distinct

offenses: a “carriage” offense which has “during and in relation to” as its standard of

participation; and a “possession” offense which has “in furtherance of” as its standard of

participation. As such, where both offenses were charged in a single count and the jury

instructions mixed the elements, the defendant’s § 924(c) conviction was reversed. Except

for general principles of duplicity and plain error, however, the Castano decision sheds little

light on whether the indictment in this case was duplicitous.

       The defendant’s failure to raise the issue of duplicity prior to trial waives the

challenge to the form of the indictment, under the presumption that a jury instruction can

clear up any ambiguity created by the duplicity. United States v. Adesida, 129 F.3d 846, 849

(6th Cir. 1997). Objections made after trial has begun are addressed not to the indictment

but to the harm stemming from a duplicitous indictment. Id.; see also Davis, 306 F.3d at 415.

When, as here, the defendant does not object to the indictment prior to trial or to the jury

instructions, our review is limited to plain error. United States v. Kakos, 483 F.3d 441, 445

(6th Cir. 2007). Under this standard, the defendant must show that there was (1) an error,
No. 09-6394                                                                                    5

(2) that was plain, and (3) that the error affected his substantial rights. Davis, 306 F.3d at

417 (citing United States v. Cotton, 535 U.S. 625, 631 (2002)). When that showing is made,

this court may exercise its discretion to notice the error “but only if (4) the error seriously

affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Cotton, 535

U.S. at 631-32 (internal quotation marks and citation omitted).

       This court has explained that, for purposes of 18 U.S.C. § 111, “a single act of assault

against multiple officers constitutes one offense, and therefore does not implicate Sixth

Amendment prohibitions on duplicity.” Hood, 210 F.3d at 663 (citing Ladner v. United

States, 358 U.S. 169, 176 (1958) (holding that when a defendant fires a single shot at two

federal officers there is a single assault)). Further, we explained that: “In differentiating

whether an attack against multiple officials is a single assault or multiple assaults, federal

courts have inquired whether officers were injured by ‘distinct successive criminal episodes,

rather than two phases of a single assault.’” Id. (quoting United States v. Segien, 114 F.3d

1014, 1022 (10th Cir. 1997) (holding that two events of assault “separated in both time and

location” were properly charged in two counts)). Thus, the focus of this inquiry is not on the

number of officers involved in the melee, but whether the fight can be separated into distinct

successive criminal episodes.

       Applying these principles in Hood, where the defendant requested a specific

unanimity instruction, this court found that the district court had not abused its discretion “in

instructing the jury it could convict on the basis of a single assaultive event.” Hood, 210

F.3d at 663. At issue was defendant’s conduct in bursting out of her home with a kitchen
No. 09-6394                                                                                     6

knife in hand and angrily telling two postal inspectors to get off of her porch. While the

majority emphasized that the defendant had not lunged at or made threatening statements to

either inspector, the concurrence noted that the defendant had held the knife six to twelve

inches from one inspector’s face. Nonetheless, the court found that the defendant failed to

identify separate acts that could plausibly imply two “distinct successive criminal episodes.”

Id.

       The circumstances in this case, although not exactly like Hood, do not involve four

distinct assaultive events. There was not a separation in time or location. Rather, the brief

melee that ensued when the four corrections officers intervened in the fight and struggled to

subdue the defendant represented a single assaultive event against multiple officers.

Irrespective of how many federal officers defendant managed to hit in the process, defendant

has not shown that it was error, much less plain error, to instruct the jury that it could convict

if it found defendant had assaulted, resisted, or impeded one or more of the named

corrections officers.

       Moreover, even if the indictment were assumed to be duplicitous, defendant’s claims

that he reacted in self-defense and without knowledge that he was resisting corrections

officers were rejected by the jury. Defendant has not demonstrated a risk of a non-

unanimous verdict even if he is correct that some jurors might have believed his claim that

he was acting in self-defense as to Crum who was the first to intervene. The evidence

presented, including the video recording of the event, supported a unanimous conviction for

assault, inflicting bodily injury, on at least one of the four federal officers. Assuming the
No. 09-6394                                                                                   7

indictment was duplicitous, defendant is unable to establish that it affected his substantial

rights.

B.        Limitation on Cross-Examination

          Defendant claims that the district court denied him a meaningful opportunity to

present a complete defense by precluding his attorney from questioning Officer Crum about

a pending administrative complaint by another inmate that accused Crum and other officers

of making a racially derogatory remark and using excessive force. See Holmes v. South

Carolina, 547 U.S. 319, 324 (2006) (citing Crane v. Kentucky, 476 U.S. 683, 690 (1986));

United States v. Blackwell, 459 F.3d 739, 752-53 (6th Cir. 2006). Although the government

asserts that this claim was waived, a fair reading of the record reflects that defense counsel’s

statement was merely an acknowledgment of the district court’s ruling on the government’s

motion in limine. We review the district court’s evidentiary rulings for abuse of discretion,

which is not at odds with a de novo review of constitutional questions of law. Blackwell, 459

F.3d at 752.

          A defendant’s right to present a complete defense is not unlimited, however, as “the

Constitution permits judges to exclude evidence that is repetitive . . . , only marginally

relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues.”

Holmes, 547 U.S. at 326-27 (internal quotation marks and citations omitted). Whether the

exclusion of evidence violated a defendant’s right to present a defense depends on whether

that evidence, on the record as a whole, would create reasonable doubt concerning the

defendant’s guilt. Blackwell, 459 F.3d at 753.
No. 09-6394                                                                                     8

       Defendant sought to use the inmate complaint to impeach Officer Crum if he denied

having racial bias or animus. The district court permitted defense counsel to inquire into

racial bias, including whether Crum had used racially derogatory remarks in the past, but

precluded reference to the unresolved prisoner complaint itself because it lacked sufficient

indicia of reliability. Defendant argues on appeal that he should have been able to inquire

into the allegation under Fed. R. Evid. 608(b) (specific instances of conduct of a witness may

“in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into

on cross-examination of the witness . . . concerning the witness’ character for truthfulness

or untruthfulness”). Even under Rule 608(b), however, the probative value of such evidence

must not be outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury. It is evident from the district court’s reasoning that the evidentiary

ruling was based on the lack of reliability and limited probative value of the allegation in the

unresolved prisoner complaint. See United States v. Wilson, 303 F. App’x 350, 355 (7th Cir.

2008). Defendant has not shown that the district court abused its discretion in evaluating the

reliability of such evidence or weighing its probative value against the potential for prejudice.

       Nor has defendant shown that this impeachment evidence would create reasonable

doubt concerning defendant’s guilt. Crum testified on direct examination that he elected to

intervene with force when he saw three black inmates beating one white inmate, explaining

that a biracial fight in the presence of other inmates in the corridor presented a “chance for

extreme volatility.” Crum also mentioned race in explaining that, after he dove into the fight,

the defendant was standing over him “swinging on [him] and the other white inmate.”
No. 09-6394                                                                                             9

Defense counsel questioned why Crum chose to intervene with force, and asked whether

Crum had problems with African-Americans or had ever made racially derogatory remarks.

Crum answered that he had no problems with any races and denied having ever made racially

derogatory statements. Thus, the suggestion that race may have motivated Crum to jump into

the fight was put before the jury, even without the impeachment defense counsel sought to

use. The jury had the opportunity to assess the credibility of Crum and the defendant, and

to view the recording of the incident in evaluating the defendant’s claim of self-defense.

C.      Sentencing

        This court reviews challenges to the reasonableness of a defendant’s sentence for

abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). Without challenging the

substantive reasonableness of his within-Guidelines sentence, defendant argues that the

district court’s decision to impose a consecutive, rather than concurrent or partially

concurrent sentence, was procedurally unreasonable.1

        A district court has discretion to order a federal sentence to run either concurrently or

consecutively to an undischarged term of imprisonment. 18 U.S.C. § 3584(b); see United

States v. Johnson, 553 F.3d 990, 998 (6th Cir. 2009).                   The determination requires

consideration of the relevant sentencing factors under 18 U.S.C. § 3553(a), as well as the

advisory Guidelines and policy statements of the Sentencing Commission. 553 F.3d at 997;

see also § 3584(b) (“The court, in determining whether the terms imposed are to be ordered

to run concurrently or consecutively, shall consider, as to each offense for which a term of

        1
         The government argues that defense counsel waived this claim by agreeing with the district court,
but the record is clear that counsel was not conceding that a consecutive sentence was appropriate.
No. 09-6394                                                                                10

imprisonment is being imposed, the factors set forth in section 3553(a).”). “A court does not

abuse its discretion when it ‘makes generally clear the rationale under which it has imposed

the consecutive sentence and seeks to ensure an appropriate incremental penalty for the

instant offense.’” United States v. Berry, 565 F.3d 332, 342 (6th Cir. 2009) (citation

omitted).

       There was no dispute concerning the calculation of the applicable Guidelines range,

which was determined to be 210 to 240 months of imprisonment. Defense counsel sought

a downward variance, a sentence at the low end of the Guidelines range, and that the

sentence be ordered to run concurrently with the two-and-a-half years remaining on his

undischarged term of imprisonment. When defense counsel pointed out that the district court

had statutory authority to impose a concurrent sentence, the judge interjected his reasons for

denying that request. It is apparent from that explanation that the district court recognized

its discretion, but declined to exercise it in this or any other case of a crime committed in

prison. The judge explained his rationale, emphasized the need to ensure an incremental

penalty for the instant offense, and considered the need to afford adequate deterrence and

avoid unwarranted sentencing disparities under § 3553(a). Defendant has not demonstrated

that his sentence was procedurally unreasonable.

       AFFIRMED.
