United States of America v. Todd Stands Alone

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2018
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
T ODD STANDS A LONE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 18-cr-00128-jdp — James D. Peterson, Chief Judge.
____________________
A RGUED MAY 18, 2021 — D ECIDED A UGUST 23, 2021
____________________
Before E ASTERBROOK, B RENNAN, and SCUDDER , Circuit
Judges.
B RENNAN, Circuit Judge. Todd Stands Alone, while impris-
oned at a federal correctional facility in Wisconsin, injured a
correctional officer. After a bench trial, the district court con-
victed him for inflicting bodily injury to a federal officer, in
violation of 18 U.S.C. § 111. Stands Alone now appeals his
conviction and challenges the district court’s interpretation of

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2 No. 20-2018
§ 111. For the reasons explained below, we affirm his convic-
tion.
I
On March 1, 2018, Todd Stands Alone was imprisoned at
a federal correctional facility in Oxford, Wisconsin. That even-
ing Correctional Officer Shay Decker inspected Stands
Alone’s cell, where she confiscated a broken pen, a playing
card, and a razor blade. Three other officers later entered
Stands Alone’s cell and removed two bags containing cloth-
ing, paperwork, and books.
Stands Alone was displeased. He paced back and forth in-
side the unit, threw his clothes at the door, and shouted at the
officers. To deescalate the situation, Decker ordered Stands
Alone to move toward the front of the unit. Instead, he re-
turned to his cell and continued to shout. Decker followed
Stands Alone to the cell and warned that she would use pep-
per spray if he continued to resist. Then, in quick succession,
Stands Alone grabbed a fire extinguisher off the wall and
lifted it up to his chest; Decker deployed her pepper spray;
and Stands Alone discharged the fire extinguisher. Fire sup-
pressant—along with pepper spray chemicals—blew towards
Decker, who experienced visual impairment and “suffered
physical pain from the chemical burns from pepper spray.”
In September 2018, a grand jury indicted Stands Alone for
violating 18 U.S.C. § 111(a)(1) and (b). Section 111(a) penalizes
whoever “forcibly assaults, resists, opposes, impedes, intimi-
dates, or interferes with any person designated in section
1114,” which includes federal correctional officers. Subsection
(b) enhances the penalty for those who “inflict[] bodily in-
jury” on the victim in the commission of any act in subsection

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No. 20-2018 3
(a). The government’s indictment against Stands Alone speci-
fied that he “knowingly and forcibly resisted, intimidated,
and interfered with” Decker “while she was engaged in her
official duties, and in doing so, inflicted bodily injury to
[her].”
Stands Alone waived his right to a jury trial. One day be-
fore the bench trial began, Stands Alone filed a “theory of de-
fense” brief, challenging the indictment as “defective.” Rely-
ing on the Tenth Circuit’s decision in United States v. Wolf-
name, 835 F.3d 1214, 1218 (10th Cir. 2016), Stands Alone con-
tended that assault is an essential element of every § 111 of-
fense. He emphasized that the indictment did not allege “as-
sault” and instead “merely provide[d] that he resisted, intim-
idated and interfered with” Decker. “Much hinge[d] on that
omission,” Stands Alone continued, because it meant “the
grand jury did not find that an assault happened.” Later that
day, Stands Alone followed up with a “supplementary theory
of the defense” brief. In it, Stands Alone attempted to clarify
that “the defense [was] not claiming that the indictment does
not state an offense, such that it has to be dismissed.” He ad-
vanced a narrow position: assault is an essential element of a
§ 111 violation when charged as a misdemeanor or felony,
and because the indictment did not charge him for assault, he
could be convicted only of an infraction under 18 U.S.C.
§ 3559(a)(9).
At and after trial, Stands Alone relied on the argument he
raised in his two theory of defense briefs and highlighted in
his post-trial reply brief: “the government is limited to what
the grand jury charged” in the indictment. The grand jury did
not charge him with “assault,” Stands Alone asserted, so he
could be punished with an infraction and not imprisonment.

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4 No. 20-2018
The district court rejected Stands Alone’s claim on the
merits. It first noted that Stands Alone’s charge implicated
§ 111(b) because the incident here involved bodily injury to
Decker. The government could secure a § 111(b) conviction,
the district court reasoned, by demonstrating that Stands
Alone forcibly committed at least one of the six acts in
§ 111(a)(1) against a federal officer and inflicted bodily injury
in doing so. The district court said Stands Alone’s interpreta-
tion—that assault is an element of any conviction under
§ 111—“defies common sense.” Pointing to the six distinct
verbs listed in § 111(a)(1), the district court concluded that
Stands Alone’s interpretation “runs contrary to the textual
language, rendering five of the six verbs in subsection (a)(1)
superfluous.”
Stands Alone’s appeal asks us to resolve a single question:
Did the district court err in concluding that assault was not an
essential element of his § 111 conviction?
II
A
We start with the government’s contention that Stands
Alone’s appeal should be dismissed because he waived or for-
feited his challenge to his conviction.
In his theory of defense briefs—submitted one day before
the trial commenced—Stands Alone argued that assault is an
essential element of any § 111 offense. An objection to “a de-
fect in the indictment” must be “raised by pretrial motion.”
F ED . R. CRIM . P. 12(b)(3). Otherwise, the motion will be
deemed “untimely,” although the “court may consider the
defense, objection, or request if the party shows good cause.”
Id. 12(c)(3). The problem with the timing of Stands Alone’s

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No. 20-2018 5
argument was not that he intentionally or inadvertently failed
to timely assert a right. Rather, he was silent when Federal
Rule of Criminal Procedure 12 required that he file such a mo-
tion.
However Stands Alone characterizes his claim, it remains
a challenge to the indictment itself, so his request was un-
timely. Stands Alone’s initial theory of defense brief chal-
lenged the indictment as defective, which “not only could
have been presented by pretrial motion but also had to be so
presented” under Rule 12(b)(3)(B). United States v. Wheeler,
857 F.3d 742, 744 (7th Cir. 2017). But the district court may
exercise discretion to relieve parties of forfeiture. See F ED . R.
CRIM. P. 12(c)(3) (good cause exception); United States v. Kirk-
land, 567 F.3d 316, 322 (7th Cir. 2009) (“If a defendant makes a
motion or raises an argument in an untimely manner, it is
within the discretion of the district court to refuse to address
it.”). Here, the district court implicitly found good cause and
rejected Stands Alone’s interpretation of § 111. And on ap-
peal, the government has not argued that this implied finding
was an abuse of discretion, nor do we find it so.
Because the district court reached the question on the mer-
its and both parties have fully briefed the statutory interpre-
tation issue, we decline to accept the government’s invitation
to dismiss Stands Alone’s appeal.
B
Now to the merits. We review issues of statutory interpre-
tation de novo. United States v. Hudson, 967 F.3d 605, 609 (7th
Cir. 2020).

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6 No. 20-2018
Section 111 protects federal officers and federal functions.
See United States v. Feola, 420 U.S. 671, 679 (1975). The statute,
in relevant part, states:
(a) In General.—Whoever—(1) forcibly assaults, re-
sists, opposes, impedes, intimidates, or interferes
with any person designated in section 1114 of this
title while engaged in or on account of the perfor-
mance of official duties …
shall, where the acts in violation of this section consti-
tute only simple assault, be fined under this title or im-
prisoned 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) … inflicts
bodily injury, shall be fined under this title or im-
prisoned not more than 20 years, or both.
18 U.S.C. § 111. Those designated under 18 U.S.C. § 1114 in-
clude federal correctional officers.
A defendant violates § 111(a)(1) by forcibly assaulting, re-
sisting, opposing, impeding, intimidating, or interfering with
a federal officer—here, Decker. Subsection (a), through its
hanging paragraph, prescribes a graded penalty structure.
For acts constituting “only simple assault,” the defendant
commits a misdemeanor offense and can receive a maximum
penalty of one-year imprisonment. But if “such acts involve
physical contact with the victim of that assault or the intent to
commit another felony,” the defendant commits a felony

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No. 20-2018 7
offense and can receive a penalty of up to eight years’ impris-
onment. Section 111(b) enhances the penalty—up to 20 years’
imprisonment—if the defendant “inflicts bodily injury” in
committing “any acts” enumerated in subsection (a). In other
words, a defendant violates § 111(b) by causing bodily injury
to a federal officer while committing one or more of the fol-
lowing acts: assault, resist, oppose, impede, intimidate, and
interfere.
Stands Alone argues that assault must be an essential ele-
ment of all offenses under § 111. Even a felony offense under
§ 111(b), he contends, demands a showing of assault. In sup-
port, Stands Alone relies again on Wolfname, 835 F.3d at 1218,
in which the Tenth Circuit held that assault is “an essential
element of every § 111(a)(1) offense.” But there, the Tenth Cir-
cuit was “bound by” its own precedent, which “divided
§ 111(a) into two offenses: a misdemeanor and a felony.” Id.
at 1218, 1220 (citing United States v. Hathaway, 318 F.3d 1001,
1008–09 (10th Cir. 2003)). Reasoning that a § 111(a)(1) convic-
tion for any of the enumerated six acts “must fall into one of
these two categories” based on the language of the hanging
paragraph, the Tenth Circuit determined that “a conviction
for any of these acts necessarily involves—at a minimum—
simple assault.” Id. at 1218. From this, Stands Alone urges this
court to interpret the statute to include assault as an essential
element of every offense under § 111, even offenses under
subsection (b).
We disagree with this reading. Start with § 111(a)(1). That
provision lists six verbs separated by the disjunctive “or” and
adjective “forcibly” modifying each of those acts. A proper
reading of the text militates against defining resist, oppose,
impede, intimidate, and interfere merely as synonyms of

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8 No. 20-2018
“assault.” That is because requiring assault as an essential el-
ement of every § 111 offense would render the remaining five
verbs superfluous. But that cannot be. Our view is supported
across other circuits. See, e.g., United States v. Briley, 770 F.3d
267, 274 (4th Cir. 2014) (“We must … ascribe meaning to the
five remaining verbs.”); United States v. Williams, 602 F.3d 313,
318 (5th Cir. 2010) (adopting the rule that “a misdemeanor
conviction under § 111(a)(1) does not require underlying as-
saultive conduct”); United States v. Gagnon, 553 F.3d 1021, 1027
(6th Cir. 2009) (interpreting the predecessor version of § 111
that “simple assault” is “a term of art that includes the forcible
performance of any of the six proscribed actions in § 111(a)”).
Cf. United States v. McIntosh, 753 F.3d 388, 393 (2d Cir. 2014)
(per curiam) (“In drafting Section 111, Congress therefore cre-
ated the single crime of harming or threatening a federal offi-
cial, and specified six ways by which the crime could be com-
mitted.” (internal quotation marks omitted)).
Courts must presume that “each word Congress uses is
there for a reason,” Advocate Health Care Network v. Stapleton,
137 S. Ct. 1652, 1659 (2017), and “[i]f possible, every word and
every provision is to be given effect,” A NTONIN SCALIA &
B RYAN A. GARNER , READING L AW: T HE I NTERPRETATION OF
L EGAL T EXTS 174 (2012) (discussing the surplusage canon). Cf.
Matter of Sinclair, 870 F.2d 1340, 1344 (7th Cir. 1989) (“To treat
the text as conclusive evidence of law is to treat it as law—
which under the constitutional structure it is.”). The most nat-
ural way to read § 111 is this: subsection (a)(1) contains six
distinct verbs, and subsection (b) enhances the penalty when
a defendant inflicts bodily injury while committing one or
more of those six acts. So assault is not an essential element of
every § 111 offense.

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No. 20-2018 9
This court’s precedent does not point in a different direc-
tion. Stands Alone asserts that a “deeper look” at United States
v. Vallery, 437 F.3d 626 (7th Cir. 2006), supports his reading of
§ 111. In Vallery, this court considered whether § 111’s misde-
meanor provision applied just to the verb “assaults” or
whether it extended to the remaining five verbs. Id. at 633. The
defendant argued that because the indictment did not include
the use of physical force, he could be convicted only of a sim-
ple assault (a misdemeanor offense) with a maximum sen-
tence of one year. Id. at 629. Reasoning that “the simple assault
provision applies to the entirety of § 111(a)” and noting that
the indictment “did not allege physical contact or any aggra-
vating facts,” this court concluded that the defendant could
be convicted only of a misdemeanor. Id. at 632–33.
This discussion in Vallery, however, has limited applicabil-
ity here. That case addressed a slightly different question:
“whether [defendant’s] indictment, which did not allege
physical contact, charged him under § 111 with a felony or a
misdemeanor.” Id. at 629. Vallery neither involved the ques-
tion whether assault is an essential element of every § 111 of-
fense nor implicated an interpretation of subsection (b), as
here. Instead, that case focused on the scope of the misde-
meanor simple assault provision of subsection (a). So Vallery
does not answer the question in this case.
The Fourth Circuit’s decision in Briley is instructive. There,
a defendant argued that assault is a required element of both
a misdemeanor offense and a felony offense under § 111(a).
770 F.3d at 273. In addition to recognizing that the defendant’s
reading “renders a slew of verbs § 111(a) largely surplusage,”
the Fourth Circuit emphasized that such interpretation “pro-
duces an absurd result.” Id. at 273–74. Construing assault as a

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10 No. 20-2018
required element of § 111(a) offenses, that court emphasized,
would mean that a “person could use force to resist federal
officials, to oppose them, to impede them, to intimidate them,
and to interfere with them” but still “escape the reach of
§ 111” so long as his conduct does not constitute an assault.
Id. at 274.
We agree with this point. True, the absurdity doctrine has
not been universally favored. Compare City of Columbus v. Ours
Garage & Wrecker Serv., Inc., 536 U.S. 424, 449 n.4 (2002) (Scalia,
J., dissenting) (“A possibility so startling (and unlikely to oc-
cur) is well enough precluded by the rule that a statute should
not be interpreted to produce absurd results.”), with John F.
Manning, The Absurdity Doctrine, 116 HARV. L. REV . 2387,
2394–2408, 2461–63 (2003) (critiquing the absurdity doctrine).
And this circuit has confined the doctrine to linguistic, as op-
posed to substantive, absurdity. See, e.g., Soppet v. Enhanced
Recovery Co., 679 F.3d 637, 642 (7th Cir. 2012) (explaining that
the absurdity doctrine “does not mean” that a court can make
“substantive changes designed to make the law ‘better’”);
United States v. Logan, 453 F.3d 804, 806 (7th Cir. 2006) (noting
that the absurdity doctrine “is limited to solving problems in
exposition, as opposed to the harshness that a well-written
but poorly conceived statute may produce”), aff’d, 552 U.S. 23
(2007). Still, it provides a useful illustration here. Stands
Alone’s proposed interpretation that assault is an essential el-
ement of any § 111 offense would lead to what Briley de-
scribed as an absurd outcome—a path we decline to tread.
III
For these reasons, we A FFIRM Stands Alone’s conviction.

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