James Stanley Pipes v. United States

399 F.2d 471

Opinions

JOHN R. BROWN, Chief Judge:

The appellant was convicted on an indictment charging he “willfully did forcibly assault * * * an officer and employee of the Bureau of Prisons of the Department of Justice, knowing him to be such officer, while the said [officer and employee] was engaged in the performance of his official duties, in violation of 18 U.S.C. § 111, as limited by 18 U.S.C. § 1114.” ¹

Appellant was an inmate of a United States penitentiary, assigned to a laundry detail, and was found guilty of assaulting a supervisor of the laundry who was employed by the Bureau of Prisons. The laundry supervisor was within the persons covered by 18 U.S.C. § 1114.

Appellant contends that he was entitled to a directed judgment of acquittal at the close of the Government’s case and that the evidence was insufficient to sustain the conviction. He contends that there was no evidence introduced by the Government as to whether he had knowledge that the person assaulted was a federal officer and contends that the Government was required to show that he had knowledge that the person whom he acted against was a federal officer. He cites three Fifth Circuit cases in support of his contention that scienter is a necessary element to the offense, namely, Hall v. United States, 5 Cir. 1956, 235 F.2d 248; Carter v. United States, 5 Cir.1956, 231 F.2d 232; and Hargett v. United States, 5 Cir.1950, 183 F.2d 859. All of these cases involved 18 U.S.C. § 111 offenses. However, this circuit in 1960 decided Bennett v. United States, 5 Cir.1960, 285 F.2d 567, in which we held, without mentioning our prior contrary holdings in Hall, Carter and Hargett, supra, that an indictment under Section 111 was not insufficient because it failed to include the element of scienter. Judge Tuttle, writing the opinion for the Court, said (285 F.2d at 570, 571):

“The statute making criminal such acts as those of which he was convicted does not require that the doer of the act have knowledge that the person who is assaulted, resisted, opposed, impeded, intimidated, or interfered with is a federal officer. It merely requires that the act condemned be done in order to establish a violation of the statute, and the provisions of the section apply to ‘whoever’ does the act, whether he does it with knowledge of the character of the person whom he acts against and whatever his intent in so acting.”

The Bennett opinion cited with approval McNabb v. United States, 6 Cir. 1941, 123 F.2d 848, in which appellant complained that the jury should have been instructed that the defendants could not be convicted unless they knew or had reasonable grounds to believe that a murdered man was a Government officer. (The case was concerned with a Section 1114 violation.) The McNabb court said that “Refutation of this specious argument is found in the plain language of the statute: * * * ” and “To be amenable to punishment under this section of the Criminal Code of the United States, the killer need not know that he is killing an officer, agent or employee of the United States.” The Court said: “Jurisdiction in the federal courts * * * stems from the actuality that the person killed is a designated federal officer, engaged in the performance of his official duties. In the language of the statute * * *, no exemption is expressly made of a killer who does not know that he is killing a federal officer of a class covered'by the statute. Exemption may not be implied. The words and the intent of the statute are clear beyond the necessity for any canonical construction. The statute says, ‘whoever shall kill,’ not ‘whoever shall kill with knowledge that he is killing’ a federal officer of an enumerated class, shall be punished.” (123 F.2d at 854, 855.)

Though there is authority to the contrary, we believe that our holding in Bennett is the better rule and expressly reaffirm and adhere to the principle stated therein that scienter is not required either in the indictment or in the proof to sustain a Section 111 conviction.

The Fourth Circuit is of the same view, as we note in its recent decision in United States v. Wallace, 4 Cir.1966, 368 F.2d 537, in which the Court observed:

“Title 18, § 111 prescribes a penalty for a forcible assault upon or interference with a federal official as defined in § 1114 while the official is ‘engaged in or on account of the performance of his official duties.’ The statute contains no words which can reasonably be said to require that the actor know at the time that the victim of the assault, or the person with whom he interferes is a federal officer engaged in his official duty.”

Wallace cited with approval our holding in Bennett, also the Sixth Circuit’s holding in McNabb, and the Second Circuit’s holding in United States v. Lombardozzi, 2 Cir.1964, 335 F.2d 414, 10 A.L.R.3d 826.

In United States v. Lombardozzi, supra, the Second Circuit reviewed the cases in the various circuits on this subject, including our own holding in Bennett. It held that scienter was not necessary in a Section 111 case, and said:

“The courts should not by judicial legislation change the statute by adding, in effect, the words 'with knowledge that such person is a federal officer.’ The reasoning in McNabb and Bennett is far more persuasive as to the proper construction to be placed upon section 111 than those cases which write the element of scienter into a statute which does not contain this requirement.” (335 F.2d at 416.)

To the same effect, see the Second Circuit’s later decision in United States v. Montanaro, 2 Cir.1966, 362 F.2d 527. See also United States v. Burgos, 2 Cir. 1964, 328 F.2d 109. We believe that the logic of Bennett, Wallace and Lombar-dozzi is compelling, for we are not authorized to rewrite a criminal statute of Congress and interline language therein which would clearly change its intent and meaning.

Here the proof was also adequate that the appellant knew that the assaulted person was a federal officer (or employee) as charged in the indictment. Affirmed.

1

. 18 U.S.C. § 111 reads as follows:

“Whoever 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 his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both. “Whoever, in the commission of any such acts uses a deadly or dangerous weapon, shall be fined not more than $10,000 or imprisoned not more than ten years, or both.”

18 U.S.C. § 1114 reads in pertinent part as follows:

“Whoever kills any judge of the United States, any United States Attorney, any Assistant United States Attorney, or any United States marshal or deputy marshal or person employed to assist such marshal or deputy marshal, any officer or employee of the Federal Bureau of Investigation of the Department of Justice, any post-office inspector, any officer or employee of the secret service or of the Bureau of Narcotics, any officer or enlisted man of the Coast Guard, any officer or employee of any United States penal or correctional institution, any officer, employee or agent of the customs or of the internal revenue or any person assisting him in the execution of his duties, * * *.”