                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                       FILED
                                                             U.S. COURT OF APPEALS
                          ________________________             ELEVENTH CIRCUIT
                                                                    June 14, 2007
                                No. 06-14310                    THOMAS K. KAHN
                            Non-Argument Calendar                     CLERK
                          ________________________

                  D. C. Docket No. 06-00003-CR-4-RH-WCS

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

TINA JONES,

                                                              Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                                 (June 14, 2007)

Before ANDERSON, DUBINA, and CARNES, Circuit Judges.

PER CURIAM:

     Tina Jones appeals her conviction, after jury trial, of forcible assault on a
federal officer. 18 U.S.C. § 111. Jones was an inmate at the Federal Correctional

Institution in Tallahassee, Florida.1 She had a tense relationship with one of the

correctional officers, Lieutenant Stanford. Stanford had accused her of using a

broken broomstick in a fight in the recreation yard. Jones claimed that Stanford

was falsely accusing her, while Stanford believed that Jones had fabricated those

allegations and others. After a hearing regarding Jones’s involvement in the fight,

Jones encountered Stanford in a hallway outside the hearing room. When Jones

began to verbally attack Stanford, he ordered her to cuff up. Jones refused to let

Stanford cuff her. Before Stanford touched her, he tripped and fell to the ground,

apparently through no fault of Jones.

       The trial was principally concerned with what happened next. Stanford

claimed that Jones intentionally jumped on top of him and struck him (including

twice on the head), resulting in injuries to his elbow and finger. Jones, on the

other hand, claimed that Stanford pulled her down, and that any contact with

Stanford was accidental or incidental to him pulling her down. The judge

instructed the jury that it could convict Jones of forcible assault only if, inter alia,

she intentionally struck or jumped on Stanford. The jury convicted Jones of that


       1
        In stating the facts, we view the evidence in the light most favorable to the government
and draw all reasonable inferences and credibility choices in favor of the jury’s verdict. See
United States v. Taylor, 480 F.3d 1025, 1026 (11th Cir. 2007).

                                                2
offense, and thus necessarily concluded that Jones struck or jumped on top of

Stanford.

      On appeal, Jones argues that her conviction was improper because the court

gave an erroneous jury instruction. We review jury instructions de novo “to

determine whether they misstate the law or mislead the jury to the prejudice of the

objecting party.” United States v. Hansen, 262 F.3d 1217, 1248 (11th Cir. 2001).

But “[w]hen the jury instructions, taken together, accurately express the law

applicable to the case without confusing or prejudicing the jury, there is no reason

for reversal even though isolated clauses may, in fact, be confusing, technically

imperfect, or otherwise subject to criticism.” United States v. Beasley, 72 F.3d

1518, 1525 (11th Cir. 1996). We therefore begin by examining whether the jury

instructions in this case contained a correct statement of the law.

      The assault on a federal officer statute reads as follows:

      (a) In general. Whoever–
             (1) forcibly assaults, resists, opposes, impedes, intimidates, or
      interferes with any person designated in section 1114 of this title
      while 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,

                                          3
      or both, and in all other cases, 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.

      Subsection (a) is the relevant provision here. It makes a distinction between

simple assault (punishable by one year’s imprisonment) and forcible assault

(punishable by eight years’ imprisonment). We first addressed this distinction in

United States v. Fallen, 256 F.3d 1082 (11th Cir. 2001). The defendant in Fallen

argued that a threat of force against a federal officer constitutes forcible assault

only if the threat is accompanied by physical contact. Id. at 1088.

      We rejected that narrow interpretation. First, we defined simple assault as

“common law” assault: “a willful attempt to inflict injury upon the person of

another, or. . . a threat to inflict injury upon the person of another which, when

coupled with an apparent present ability, causes a reasonable apprehension of

immediate bodily harm.” Id. (citation omitted, omission in original). We then

noted that a forcible assault “would therefore have to be something more” than

simple assault. Id. Finally, we held that an example of this “something more” is a

                                           4
“willful attempt or threat to inflict serious bodily injury, coupled with an apparent

present ability, which causes the intended victim a reasonable apprehension of

immediate serious bodily harm or death.” Id. (emphasis in original). As a result,

the defendant in Fallen was properly convicted of forcible assault, even though he

did not make physical contact with the federal officers, because he threatened to

cause serious bodily injury, which caused the officers to reasonably apprehend

immediate serious bodily harm. Id.

      In the instant case, Jones argues that she was improperly convicted of

forcible assault because the jury did not find that she attempted or threatened to

inflict serious bodily injury, or caused a federal officer to reasonably apprehend

immediate serious bodily injury or death. Instead, the district court instructed the

jury that Jones could be convicted of forcible assault if, inter alia, (1) she

“threatened or attempted to inflict bodily injury” on the federal officer, (2) “the

threat or attempt caused [the federal officer] to experience reasonable

apprehension that the threatened or attempted injury would occur,” and (3) “as part

of the assault or forcible resistance, the Defendant struck [the federal officer] or

jumped on his back.” In short, the court instructed the jury that it could find Jones

guilty of forcible assault only if it found that Jones had committed a simple assault




                                           5
and that she had struck or jumped on the federal officer.2 When the jury convicted

Jones of forcible assault, it necessarily found that she had struck or jumped on Lt.

Stanford.

       Jones argues that because the court did not give a Fallen instruction, the jury

did not necessarily find that Jones had threatened to cause serious bodily injury or

death, or that she caused a reasonable apprehension thereof. But contrary to

Jones’s contention, this omission did not necessarily mean the instruction

misstated the law. Fallen did not exhaust the category of forcible assault. Rather,

it simply held that “something more, such as” a threat to inflict serious bodily

injury, coupled with a reasonable apprehension of serious bodily injury, was

sufficient to elevate simple assault to forcible assault. Fallen, 256 F.3d at 1088

(emphasis added). Fallen did not say that proof of an intentional striking or

jumping was insufficient. It had no occasion to do so, since there was no physical

contact in that case.

       In a recent published decision, United States v. Martinez, 2007 U.S. App.

LEXIS 11557 (11th Cir. 2007), we made explicit what was merely implicit in the



       2
          The court reiterated its distinction between simple assault and forcible assault when it
instructed the jury to consider the lesser included offense of simple assault “only if you find the
Defendant not guilty of the greater offense of assaulting or forcibly resisting a federal officer and
initiating actual physical contact.”

                                                  6
reasoning of Fallen: that physical contact is sufficient to elevate simple assault to

forcible assault, even when that physical contact does not result in actual bodily

injury. Id. at *15. Because the jury instructions in this case provided that Jones

could be convicted of forcible assault only upon proof of a simple assault plus

physical contact, they contained a correct statement of the law. A reversal of

Jones’s conviction is therefore not warranted on this ground. See Beasley, 72 F.3d

at 1525.

      Jones’s other challenges to the jury instructions are equally without merit.

Accordingly, Jones was properly convicted of forcible assault, and her conviction

is

AFFIRMED.




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