Improper Jury Instructions on Assault Were Not Plain Error

United States v. Jereb, 882 F.3d 1325 (10th Cir. 2018) (UT, published): Jereb was convicted of forcibly opposing a federal officer, in violation of 18 U.S.C. § 111(b). On appeal he argued that he was entitled to a new trial because the jury was not correctly instructed on the elements of assault. Specifically, he said that the jury was not told that assault is an essential element to every § 111 charge and the verdict form shows the jury did not find he committed an assault. The panel majority rules against Jereb because he invited the error of which he complains. Although Jereb submitted the 10th Circuit’s Criminal Pattern Jury Instruction on assault, he should have known better (even if the jury instruction committee did not). When he was tried, United States v. Hathaway, 318 F.3d 1001, 1007-10 (10th Cir. 2003), already had declared that assault is an element of every § 111(b) charge. According to the majority, United States v. Wolfname, 835 F.3d 1214 (10th Cir. 2016), published four months after Jereb’s trial, merely reaffirmed that holding. Although, the district court committed the same error as the court in Wolfname, and the error there led that panel to reverse the conviction, Jereb's conviction is affirmed. It did not matter that in Wolfname the panel found the district court plainly erred in not instructing the jury that assault was an element of the offense. It also did not matter that although the comment section to the assault instruction mentioned Hathaway, it did not remark on the holding that the panel majority believed was clearly obvious, nor did it say that assault was an element in every § 111(b) charge. Nor did it matter that the jury did not convict Jereb of assault.

Judge Phillips dissents. He writes, that like Wolfname, Jereb satisfied all four prongs of the plain error test. He also says that nowhere in Hathaway did the court hold that the five non-assault methods of committing the § 111(b) offense required assault. Finally, he thinks it is unfair to use invited error against Jereb, when he, the government and the district court could have reasonably believed that Hathaway did not require the government to prove an assault as part of proving each of the five non-assault-means of committing the offense.

Jereb also challenged a mandatory mental health treatment condition of supervised release. The panel interpreted the supervised release statutes, 18 U.S.C. § 3583(d)(1) & (2), to permit any special condition as long as it is reasonably related to (1) the nature and circumstances of the offense and the history and characteristics of the accused; (2) deterrence; (3) the need to protect the public; (4) the need to provide the accused with need educational training or medical care; and involves no greater deprivation of liberty than is necessary to satisfy these latter three factors. Here, the condition was reasonably related to Jereb’s history, characteristics and the circumstances of the offense - which was enough to justify the condition.