Filed: Jul. 15, 2020
Latest Update: Jul. 15, 2020
Summary: Case: 18-13182 Date Filed: 07/15/2020 Page: 1 of 20 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 18-13182 _ D.C. Docket No. 1:16-cr-00401-MHC-JFK-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SHUSTA TRAVERSE GUMBS, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Georgia _ (July 15, 2020) Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and LUCK, Circuit Judges. LUCK, Circuit Judge: Case: 18-13182 Date File
Summary: Case: 18-13182 Date Filed: 07/15/2020 Page: 1 of 20 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 18-13182 _ D.C. Docket No. 1:16-cr-00401-MHC-JFK-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SHUSTA TRAVERSE GUMBS, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Georgia _ (July 15, 2020) Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and LUCK, Circuit Judges. LUCK, Circuit Judge: Case: 18-13182 Date Filed..
More
Case: 18-13182 Date Filed: 07/15/2020 Page: 1 of 20
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13182
________________________
D.C. Docket No. 1:16-cr-00401-MHC-JFK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHUSTA TRAVERSE GUMBS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 15, 2020)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and LUCK, Circuit Judges.
LUCK, Circuit Judge:
Case: 18-13182 Date Filed: 07/15/2020 Page: 2 of 20
Shusta Traverse Gumbs was a fugitive with an outstanding warrant for his
arrest. Sitting in his car, surrounded by task force officers with the U.S. Marshals
Service ready to take him into custody, Gumbs stomped on his gas pedal, struck one
officer and just missed three others. But his escape was short lived. The officers
caught up with Gumbs days later. He was charged with, tried for, and convicted of
two counts of using a deadly weapon to forcibly assault, resist, oppose, impede,
intimidate, or interfere with a federal officer. Gumbs argues that we should reverse
his conviction because the district court refused to give his proposed instructions
defining “forcibly” and use of a deadly weapon, failed to instruct the jury on the
lesser included offense of simple assault, gave the wrong answer to the jury’s
question during deliberations, and erred in denying his motion for judgment of
acquittal on count two. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Gumbs was a fugitive with an outstanding arrest warrant out of Douglas
County, Georgia, for failing to appear in court on charges of possession of a firearm
by a convicted felon and theft by receiving and possession of less than an ounce of
marijuana. A seven-member task force working with the United States Marshals
Service was assigned to find Gumbs and arrest him. On October 21, 2016, Officer
Walker Ralston spotted Gumbs sitting inside his car in a small, fenced-in Atlanta
parking lot. The lot had only one opening for entering and exiting from the street.
2
Case: 18-13182 Date Filed: 07/15/2020 Page: 3 of 20
Officer Ralston radioed the other task-force members that he saw Gumbs in the
parking lot.
Officer Bryant Hill got there first. Officer Hill pulled around Gumbs’s car
and parked behind it so Gumbs could not back out. Officer Jeffrey Stevens, riding
with Officer Ralston and Officer Christopher Baker, arrived next. Officer Stevens
parked his van in front of Gumbs to block the exit, and he activated his blue lights.
Officer Stevens, Officer Ralston, and Officer Baker then got out of the van and
approached Gumbs with their guns drawn; the officers announced themselves as law
enforcement and told Gumbs to park his car, show his hands, and surrender. Officer
Hill got out of his car and joined the others. All the officers were wearing vests that
said they were law enforcement.
Gumbs initially tried to back out but stopped because Officer Hill’s car was
in the way. Inspector Frank Lempka then arrived with Deputy David Siler.
Inspector Lempka parked his car, with his blue lights activated, perpendicular to
Officer Stevens’s van to further block the exit. This trial exhibit shows where the
cars were at that point:1
1
The box with a single opening is the parking lot. Gumbs’s car is the one marked “G.”
Officer Hill’s car is marked “H.” Officer Stevens’s van is marked “S.” And Inspector Lempka’s
car is marked “L.”
3
Case: 18-13182 Date Filed: 07/15/2020 Page: 4 of 20
Inspector Lempka and Deputy Siler got out of their car and went toward the
driver’s side of Gumbs’s car, stopping a few feet behind the four other officers
(Officers Stevens, Ralston, Baker, and Hill). Gumbs’s window was partially down,
and the officers were yelling at him that they were police and to park the car and get
out. Gumbs was sitting in his car, which was running and, the officers believed, in
drive.
Inspector Lempka ran back to his car to get a baton to break open Gumbs’s
windows. Meanwhile, Officer Ralston and Officer Stevens reached into Gumbs’s
car through his driver’s side window. As the officers were reaching in, Gumbs
slammed on the gas and the car accelerated. Right then, Inspector Lempka was
running between his car and Officer Stevens’s car toward Gumbs. Gumbs hit both
cars as he sped off and struck Inspector Lempka. He did not even slow down as he
4
Case: 18-13182 Date Filed: 07/15/2020 Page: 5 of 20
pinned Inspector Lempka between the cars. Inspector Eric Heinze was the last to
arrive and was pulling into the parking lot as Gumbs was driving away. Gumbs hit
Inspector Heinze’s car, and Inspector Heinze chased Gumbs as he fled. Gumbs went
on to hit a civilian car before eventually abandoning his car and escaping on foot.
When Gumbs slammed on the gas: Officers Baker, Stevens, and Ralston were
within a foot of Gumbs’s driver’s side window, close enough to reach into Gumbs’s
car to arrest him; Officer Hill was near them but was standing more toward the back
of the car in a less vulnerable position; and Deputy Siler was about five feet from
the car, further away than the others. Inspector Heinze was still in his car when
Gumbs sped off.
Both of Inspector Lempka’s legs were injured in the incident, and his right
ankle and foot were severely sprained. Inspector Lempka also suffered injuries to
his head resulting in a black eye and a large bump on his brow.
Gumbs was arrested four days later. Soon after, Gumbs was indicted for two
counts of using a deadly weapon to forcibly assault, resist, oppose, impede,
intimidate, or interfere with a federal officer, in violation of 18 U.S.C. § 111(a)(1)
and (b).2 Count one charged Gumbs with hitting Inspector Lempka. Count two
2
The statute, 18 U.S.C. § 111, reads in full:
(a) IN GENERAL.—Whoever—
5
Case: 18-13182 Date Filed: 07/15/2020 Page: 6 of 20
charged Gumbs with forcibly assaulting, resisting, opposing, impeding, and
interfering with the six other officers who were next to the car as Gumbs was
speeding away from the parking lot.
The case was tried in front of a jury over six days in December 2017. At the
end of the government’s case, Gumbs moved for judgment of acquittal. As to count
two, Gumbs argued there was no evidence he acted in a threatening way toward the
officers standing next to his car, although he admitted his argument was weaker with
respect to the officers “closest” to his car. The district court denied Gumbs’s motion.
In his closing argument, Gumbs admitted he hit Inspector Lempka but claimed
it was an accident. Gumbs argued that the evidence suggested he had used the car
(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, 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.
6
Case: 18-13182 Date Filed: 07/15/2020 Page: 7 of 20
to flee rather than as a deadly weapon. Gumbs acknowledged he resisted, opposed,
and impeded the officers to evade arrest, but he maintained he did not do so forcibly.
At the charge conference, Gumbs requested a special jury instruction for the
term “forcibly”:
To act “forcibly” means to use physical force or threats of force.
“Threats of force” means threats of bodily harm. To forcibly assault,
resist, oppose, impede or interfere with a federal officer, the Defendant
must use or attempt to use physical force against the officer or threaten
in some way to do bodily harm to the officer.
Gumbs also requested a special instruction regarding the use of a deadly weapon:
A motor vehicle is a dangerous or deadly weapon if it is used in
a way that is capable of causing death or serious bodily injury. For a
car to qualify as a deadly or dangerous weapon, the defendant must use
it as a deadly or dangerous weapon and not simply as a mode of
transportation.
To show that a weapon was “used,” the Government must prove
that it was actively employed in some way to further or advance the
forcible assault, resistance, opposition, impeding or interference with a
federal officer. “Use” can occur through intentionally displaying a
weapon during the course of forcibly assaulting, resisting, opposing,
impeding or interfering.
Finally, Gumbs requested that the jury be instructed on the lesser included
offense of simple assault under 18 U.S.C. § 111(a). The district court denied
Gumbs’s requested instructions except for the first sentence of his proposed use-of-
a-deadly-weapon instruction. In relevant part, the court instructed the jury:
It is a federal crime to forcibly assault, resist, oppose, impede or
interfere with a federal officer using a deadly or dangerous weapon or
inflicting body injury while the officer is performing official duties.
7
Case: 18-13182 Date Filed: 07/15/2020 Page: 8 of 20
In this case the defendant can be found guilty of this crime only
if all the following facts are proved beyond a reasonable doubt:
One, the defendant knowingly and willfully forcibly assaulted,
resisted, opposed, impeded or interfered with the person described in
the superseding indictment;
Two, the person forcibly assaulted, resisted, opposed, impeded
or interfered with a federal officer performing an official duty; and,
Three, the defendant used a deadly or dangerous weapon or
inflicted bodily injury.
A forcible assault is an intentional threat or attempt to cause
serious bodily injury when the ability to do so is apparent and
immediate. It includes any intentional display of force that would cause
a reasonable person to expect immediate and serious bodily harm or
death.
....
A dangerous or deadly weapon means any object that can cause
death or present a danger of serious bodily injury.
A weapon intended to cause death or present a danger of serious
bodily injury, but that fails to do so by reason of a defective component,
still qualifies as a deadly or dangerous weapon.
A motor vehicle is a deadly or dangerous weapon if it is used in
a way that is capable of causing death or serious bodily injury.
Though a forcible assault requires an intentional threat or attempt
to inflict serious bodily injuries, the threat or attempt does not have to
be carried out and the victim does not have to be injured.
....
The words knowingly and willfully as those terms are used in the
superceding [sic] indictment mean that the act was committed
8
Case: 18-13182 Date Filed: 07/15/2020 Page: 9 of 20
voluntarily and not because of mistake or by accident.
During deliberations, the jury asked the district court whether a car is “still a
deadly weapon if you don’t intend to use it that way.” The district court proposed
to respond to the jury’s question by repeating the deadly-weapon instructions it gave
earlier, but Gumbs argued the court should simply answer “no.” When the district
court disagreed with Gumbs’s response, Gumbs requested that it at least reiterate the
knowing-and-willful instruction too. The district court rejected Gumbs’s argument
and repeated its prior deadly-weapon instructions.
The jury found Gumbs guilty on counts one (hitting Inspector Lempka) and
two (but only as to the three officers—Officers Baker, Stevens, and Ralston—
standing closest to Gumbs’s car when he sped off). Gumbs was sentenced to 235
months in prison followed by three years of supervised release.
DISCUSSION
Gumbs appeals the district court’s refusal to give his requested jury
instructions, the district court’s response to the jury’s question, and the denial of his
motion for judgment of acquittal on count two of the indictment. We address each
issue below.
Jury Instructions
“We review a district court’s refusal to give a requested jury instruction for
abuse of discretion.” United States v. Carrasco, 381 F.3d 1237, 1242 (11th Cir.
9
Case: 18-13182 Date Filed: 07/15/2020 Page: 10 of 20
2004). A district court abuses its discretion if “the requested instruction was a
correct statement of the law,” the “subject matter [of the instruction] was not
substantially covered by other instructions,” and the instruction “dealt with an issue
in the trial court that was so important that failure to give it seriously impaired the
defendant’s ability to defend himself.” Id. (quoting United States v. Paradies,
98
F.3d 1266, 1286 (11th Cir. 1996)). Gumbs argues the district court abused its
discretion in refusing to give his proposed instructions on (1) the term “forcibly,”
(2) the use of a deadly weapon, and (3) a lesser included offense.
The “Forcibly” Instruction
The district court refused to give Gumbs’s proposed jury instruction on the
term “forcibly.” Gumbs argues this was an abuse of discretion because “[t]he jury
was not instructed that ‘forcibly’ means the intentional use or threatened use of
physical force against the officer and that every means of violating § 111 requires
such force.” We see no abuse of discretion in refusing to give Gumbs’s proposed
instruction because its subject matter was substantially covered by other instructions.
See Paradies, 98 F.3d at 1286.
The district court instructed the jury that the government had to prove beyond
a reasonable doubt that Gumbs “forcibly assaulted, resisted, opposed, impeded or
interfered with” Officers Baker, Stevens, and Ralston. The jury was also instructed
that a forcible assault “includes any intentional display of force.” There was no need
10
Case: 18-13182 Date Filed: 07/15/2020 Page: 11 of 20
to do more. The district court’s instruction tracked the language of § 111. That
alone, we’ve said, leaves “little danger of prejudice.” United States v. Martin, 704
F.2d 515, 518 (11th Cir. 1983). This is especially so where, as here, the tracked
language has a “generally understood meaning.” See
id. (quoting C. Wright, 2
Federal Practice and Procedure: Criminal 2d § 485, at 711–12 (1982)). In rejecting
the same argument on plain-error review in United States v. Hightower,
512 F.2d
60, 62 (5th Cir. 1975), 3 our predecessor court explained that the language of § 111,
including the word “forcibly,” “is understandable to the man on the street and needs
no elaboration.” Id.; see also United States v. Fernandez,
837 F.2d 1031, 1035 (11th
Cir. 1988) (“The word ‘forcibly’ in section 111 means only that some amount of
force must be used.”).
The district court did not need to tell the jury that “forcibly” modified
“assaulted, resisted, opposed, impeded or interfered.” As a matter of grade-school
grammar, the adverb “forcibly” necessarily modifies each of the listed verbs that
follows it. See, e.g., Long v. United States, 199 F.2d 717, 719 (4th Cir. 1952)
(explaining that, under “ordinary rules of grammatical construction,” the “use of the
adverb ‘forcibly’ before the first of the string of verbs, with the disjunctive
conjunction used only between the last two of them, shows quite plainly that the
3
All decisions of the former Fifth Circuit announced before October 1, 1981, are binding
precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1208–09 (11th Cir.
1981) (en banc).
11
Case: 18-13182 Date Filed: 07/15/2020 Page: 12 of 20
adverb is to be interpreted as modifying them all”); see also Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts § 19, at 147–51 (2012)
(describing the series-qualifier canon). Assuming that jurors understand the rules of
grammar is not an abuse of discretion.
The “Use of a Deadly Weapon” Instruction
The district court gave only the first sentence of Gumbs’s proposed instruction
regarding the use of a deadly weapon. Gumbs argues the district court erred in not
giving the jury the whole thing. Again, we conclude that the district court did not
abuse its discretion because the rest of the instruction was substantially covered by
other instructions and the failure to give it did not seriously impair Gumbs’s defense.
For that reason, we need not decide whether Gumbs failed to preserve his objection
to this instruction, such that the more stringent standard of review for plain error
would apply.
The district court, as Gumbs requested, instructed the jury that a “motor
vehicle is a deadly or dangerous weapon if it is used in a way that is capable of
causing death or serious bodily injury.” Having given this instruction, the district
court did not need to read the second sentence that, “[f]or a car to qualify as a deadly
or dangerous weapon, the defendant must use it as a deadly or dangerous weapon
and not simply as a mode of transportation.” The second sentence is essentially the
inverse of, and covered by, the first. To the extent that Gumbs believes this sentence
12
Case: 18-13182 Date Filed: 07/15/2020 Page: 13 of 20
was necessary to convey that the jury could not convict unless he intended to use the
car as a weapon, that would be a misstatement of the law. We have held that § 111
is a statute of general intent, so Gumbs needed only to intend to use the car. See
United States v. Ettinger, 344 F.3d 1149, 1161 (11th Cir. 2003). He did not need to
intend to use the car as a weapon. See 18 U.S.C. § 111(b) (requiring only that the
defendant “use[] a deadly or dangerous weapon”).
The rest of the proposed instruction was likewise covered because the court
clearly instructed the jury that Gumbs could not be found guilty unless he “used a
deadly or dangerous weapon.” Gumbs complains the district court didn’t define
“use” specifically enough. But “[i]t is well settled that a court need not define terms
that are not unduly technical or ambiguous or that are within the common
understanding of the jury.” United States v. Pepe, 747 F.2d 632, 674 n.78 (11th Cir.
1984). For example, we’ve held that “distribute,” United States v. Lignarolo,
770
F.2d 971, 980 (11th Cir. 1985), “producing,” United States v. Smith,
459 F.3d 1276,
1297–98 (11th Cir. 2006), and “kickback,” United States v. Gonzalez,
834 F.3d
1206, 1225–26 (11th Cir. 2016), have common meanings that were readily
understood by jurors and did not need to be defined. “Use,” as used in § 111, is even
more common and readily understood, and for the same reasons we held in
Lignarolo, Smith, and Gonzalez, the district court did not need to give the separate
definition proposed by Gumbs.
13
Case: 18-13182 Date Filed: 07/15/2020 Page: 14 of 20
Finally, not defining “use” did not seriously impair Gumbs’s defense. Gumbs
was able to, and did, argue to the jury that he used the car to flee and not as a deadly
weapon. (DE 178 at 184) (“[T]here is no evidence in this case that Mr. Gumbs ever
made the decision to actually use that car as a deadly weapon. His intent was to use
the car to go out the gate.”). We know the jury understood and considered Gumbs’s
flight defense based on the jury’s question.
The Lesser Included Offense Instruction
Gumbs requested that the jury be given the option of finding him guilty of the
lesser included offense of simple assault under 18 U.S.C. § 111(a). A criminal
defendant “is only entitled to [a] lesser included offense instruction if the evidence
would permit a rational jury to find him guilty of the lesser offense and not the
greater.” United States v. Catchings, 922 F.2d 777, 780 (11th Cir. 1991). “[A]
lesser-offense charge is not proper where, on the evidence presented, the factual
issues to be resolved by the jury are the same as to both the lesser and greater
offenses.” Sansone v. United States,
380 U.S. 343, 349–50 (1965). “In other words,
the lesser offense must be included within but not, on the facts of the case, be
completely encompassed by the greater.”
Id. at 350.
A simple assault is a violation of § 111(a) that does not involve physical
contact or the intent to commit another felony. See United States v. Siler, 734 F.3d
1290, 1296–97 (11th Cir. 2013) (delineating the “three separate crimes” created by
14
Case: 18-13182 Date Filed: 07/15/2020 Page: 15 of 20
§ 111). The elements of § 111(a) and § 111(b) are essentially the same, except that
subsection (b) imposes an enhanced penalty for using a “deadly or dangerous
weapon” or inflicting “bodily injury.”
We agree with the district court that if the jury were to find the elements of
simple assault, then it would also have to find the elements of forcible assault with
a deadly weapon. There is no way a rational jury could find Gumbs guilty of simple
assault but not forcible assault with a deadly weapon, because the only action that
could form the basis of an assault was Gumbs’s gunning his car. The jury could not
give Gumbs half a loaf under these facts; either he was guilty of the charged offense
or not guilty at all.
The D.C. Circuit reached the same conclusion in United States v. Arrington,
309 F.3d 40 (D.C. Cir. 2002). There, the defendant admitted “that the evidence was
sufficient to satisfy the requirements of § 111(a),” but he contended that “it did not
meet the additional requirements of § 111(b)” because, “[i]n his view, the evidence
‘established no more than that [he] used his car to try to flee from the officers.’”
Id.
at 48 (second alteration in original). On appeal, the court said the defendant’s
admission of liability under § 111(a) was “inconsistent with [his] ‘mere flight’
theory” because a defendant cannot be guilty under § 111(a) without committing one
or more of the prohibited acts “forcibly.”
Id. at 48 n.17. That is, the defendant could
not have been guilty of violating § 111(a) yet innocent of violating § 111(b), because
15
Case: 18-13182 Date Filed: 07/15/2020 Page: 16 of 20
in both cases the defendant must have acted “forcibly,” and the only forcible act the
defendant committed was his taking off in his car while officers had reached in and
grabbed ahold of him. See id. at 48 n.17, 49.
Gumbs could not have been guilty of simple assault yet innocent of using a
deadly weapon, because the only assault he committed was his speeding away in his
car. If there was evidence of other assaults not involving the use of a deadly
weapon—for instance, if Gumbs had tried to slap one of the officers’ hands as the
officer was reaching into the car—then it may have been appropriate to instruct the
jury on a lesser included offense as to that separate act. But there is no such evidence
here. As in Arrington, the only assault Gumbs committed was using his car to pin
and strike an officer, which would have been sufficient for the jury to find him guilty
of both simple assault under § 111(a) and assault with a deadly weapon under
§ 111(b). Accordingly, the district court did not abuse its discretion in refusing
Gumbs’s lesser included offense instruction.
The District Court’s Response to the Jury’s Question
During deliberations, the jury asked the district court whether a car is “still a
deadly weapon if you don’t intend to use it that way.” Gumbs argued that the court
should simply answer “no” or should reiterate its knowing-and-willful instruction,
but the court instead chose to repeat only its prior instructions regarding the use of a
deadly weapon. Gumbs argues that the district court’s response was an abuse of
16
Case: 18-13182 Date Filed: 07/15/2020 Page: 17 of 20
discretion because it “did not address the jury’s question on mens rea required for
use of a car as [a] dangerous or deadly weapon.”
“When a jury requests supplemental instruction, a district court should answer
within the specific limits of the question presented and resolve the jury’s difficulties
with concrete accuracy.” United States v. Joyner, 882 F.3d 1369, 1375 (11th Cir.
2018) (citation and quotation marks omitted). “District courts have considerable
discretion regarding the extent and character of supplemental jury instructions, but
the supplemental instructions cannot misstate the law or confuse the jury.”
Id. “To
determine whether the jury was misled or confused, we review supplemental jury
instructions as part of the entire jury charge and in light of the indictment, evidence
presented, and arguments of counsel.”
Id.
Here, the supplemental instruction neither confused the jury nor misstated the
law. That it was not confusing is obvious enough—the district court simply reread
the relevant portions of the jury instructions. See
id. at 1375–77 (rejecting claim
that district court’s supplemental instruction was confusing where the court in large
part referred the jury back to the relevant portions of its earlier instructions). And
the district court’s response clearly did not misstate the law. Section 111 “is a
general intent statute.”
Ettinger, 344 F.3d at 1161. “[T]here is no need under § 111
to show specific intent . . . .” See
id. at 1160. Thus, a defendant need not specifically
intend to use a car as a deadly weapon to violate § 111(b). See Arrington,
309 F.3d
17
Case: 18-13182 Date Filed: 07/15/2020 Page: 18 of 20
at 45–46. The defendant must simply intend to “use the object that constitutes the
deadly weapon.”
Id. at 46. In other words, the defendant must use the car in such a
manner that it is “capable of causing serious bodily injury or death to another
person.” See
id. at 45–46. The district court’s response correctly stated this principle
of law.
The Sufficiency of the Evidence as to Count Two
Gumbs argues that the evidence was insufficient to support his conviction on
count two of the indictment because there was no evidence he directed force at the
officers next to his car or used his car as a weapon against them. Gumbs does not
challenge the sufficiency of the evidence as to count one. “We review challenges to
the sufficiency of the evidence de novo” and ask “whether a reasonable jury could
have found the defendant guilty beyond a reasonable doubt.” United States v.
Mercer, 541 F.3d 1070, 1074 (11th Cir. 2008). We view all evidence in the light
most favorable to the government, drawing all reasonable inferences in its favor.
Id.
The evidence clearly shows that Gumbs obstructed and resisted the officers
who stood near his car at the time of the incident. Gumbs admitted as much at trial.4
The officers went to the parking lot to arrest Gumbs; they yelled at him to stop the
4
In arguing his motion for judgment of acquittal outside the presence of the jury, Gumbs
conceded that “the evidence . . . show[ed] that” he “attempted to resist [the officers’] efforts to
arrest him.” Nonetheless, Gumbs argued for acquittal because he believed his actions were not
“forcible.” Gumbs said the same thing during closing arguments. (DE 178 at 186) (“This is not a
forceable resistance, a forcible impeding. This is a resisting, opposing, impeding, yes. In the sense
that he evaded arrest. But that’s not what the government wants. They want more than that.”).
18
Case: 18-13182 Date Filed: 07/15/2020 Page: 19 of 20
car and get out. Right when they were about to arrest Gumbs, literally reaching into
the car to grab ahold of him, Gumbs sped off. Moreover, the evidence supports a
finding that Gumbs did so with “some amount of force.” See Fernandez, 837 F.2d
at 1035 (“The word ‘forcibly’ in section 111 means only that some amount of force
must be used.”). Officers were standing within a foot of Gumbs’s car, reaching into
the car, when he stepped on the gas pedal and sped off. We have held similar
evidence to be sufficient for purposes of a § 111(b) conviction. See United States v.
Gonzalez,
122 F.3d 1383, 1385–86 (11th Cir. 1997). In Gonzalez, for instance,
police yelled at the defendant to get out of his car as he was trying to leave a parking
lot.
Id. at 1385. The defendant continued to flee, “seemingly without regard for
persons and vehicles in [his] path,” nearly hitting two police officers in the process.
Id. The defendant paused once he reached a fence, behind which were two police
cars blocking his path, and officers again told him to stop and get out.
Id. Instead,
the defendant “repeatedly rammed the fence, finally breaking through and ramming
the [officers’] cars.”
Id. He “eventually ran aground on a stump” and was arrested.
Id. On appeal, we held the evidence was sufficient to support his conviction under
§ 111(b), despite his claim that he did not intend to direct force at the officers and
was “simply driving, head down, attempting to flee.” See
id. at 1386.
Finally, Gumbs’s car was capable of causing serious bodily injury or death to
another person. See United States v. Gualdado, 794 F.2d 1533, 1535 (11th Cir.
19
Case: 18-13182 Date Filed: 07/15/2020 Page: 20 of 20
1986) (“An automobile has been held to constitute a deadly weapon when used to
run down a law enforcement officer.”). And he used the car in a way that could have
caused, and did cause, serious injury to the officers. Gumbs “floored the gas peddle
[sic]” as the officers were inches away, yelling at him to get out, and reaching inside
the car. Gumbs used the car to shake loose of the officers about to arrest him and
break the blockade so he could get out of the parking lot. He just missed hitting the
officers by his window and did hit Inspector Lempka. Even Gumbs admitted that
his argument for acquittal was weakest as to the officers standing closest to the car
(the officers whom the jury found him guilty of forcibly resisting). The evidence
was sufficient to support Gumbs’s conviction on count two of the indictment.
CONCLUSION
The district court did not abuse its discretion in refusing to give Gumbs’s
proposed jury instructions and in giving a supplemental instruction in response to
the jury’s question. Because the evidence was sufficient to support Gumbs’s
conviction on count two of the indictment, we affirm.
AFFIRMED.
20
