United States v. Edwin Affron Kartman

417 F.2d 893, 1969 U.S. App. LEXIS 10504

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 9, 1969
• Docket: 22984_1
• Status: Published

Opinions

BROWNING, Circuit Judge:

Defendant, a ministry student, went to the Armed Forces Induction Center in Oakland, California, on December 18, 1967, to “lend * * * moral support” to demonstrators protesting the Selective Service System and this country’s participation in the Vietnam conflict. In the course of the demonstration, defendant kicked Richard M. St.Germain, a deputy marshal of the United States, who, with another federal officer, was engaged in subduing and arresting a demonstrator. Defendant was charged with a violation of 18 U.S.C. § 111.¹ He was convicted, and appealed. We have concluded that several errors and defects in the proceedings, considered cumulatively, may have affected defendant’s substantial rights. We therefore reverse and remand for a new trial.

The indictment alleged that defendant assaulted Deputy Marshal St.Germain “knowing him to be such officer.” The trial court, holding that the quoted language was surplusage, declined to instruct the jury that the government must prove that the defendant knew Mr. St.Germain to be a deputy marshal.

The court’s ruling was correct. Knowledge of the official status of the victim of a forcible assault is not an element of that offense under 18 U.S.C. § 111. McEwen v. United States, 390 F.2d 47 (9th Cir. 1968).² The allegation of such knowledge in the indictment was therefore surplusage which it was unnecessary for the government to prove. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 222, 60 S.Ct. 811, 84 L.Ed. 1129 (1939); Gawne v. United States, 409 F.2d 1399, 1403 (9th Cir. 1969); Castle v. United States, 287 F.2d 657, 660 (5th Cir. 1961); Gambill v. United States, 276 F.2d 180, 181 (6th Cir. 1961).

Defendant argues that the interpretation given section 111 in McEwen violates the holding of Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952), that legislative silence does not eliminate criminal intent from a statutory codification of a common-law crime which required mens rea. But McEwen holds only that specific knowledge that the victim is a federal officer is not an essential element of forcible assault under section 111. McEwen does not hold that the statute eliminates mens rea — the evil purpose or mental culpability which was the essential mental component of common-law assault and battery.³

This interpretation of the forcible assault prohibition in section 111 as requiring only mens rea, and not also specific knowledge of the victim’s official status, comports with the legislative purpose, which was simply to provide a federal forum when the enumerated offenses were committed against federal officers engaged in the performance of federal duties. United States v. Wallace, 368 F.2d 537, 538 (4th Cir. 1966); United States v. Lomardozzi, 335 F.2d 414, 416, 10 A.L.R.3d 826 (2d Cir. 1964); see also Burke v. United States, 400 F.2d 866, 868 (5th Cir. 1968).⁴

Acceptance of this conclusion, however, establishes the premise of defendant’s alternative argument, namely, that the inclusion in the indictment of an allegation of specific knowledge was error.

Defendant contends that this error was prejudicial because he built his defense upon the assumption, justified by the indictment, that the prosecution would fail unless the jury was satisfied beyond a reasonable doubt that the defendant knew that Mr. St.Germain was a deputy marshal at the time of the assault. See Gawne v. United States, supra, 409 F.2d 1399, 1403-1404 (9th Cir. 1969), and cases there cited.

Much of the apparent strength of this suggestion of prejudice fades on an examination of the record.

Defendant was aware of the government’s position from the beginning of trial, and did not object when the court indicated that it would reserve decision of the issue to the settlement of instructions. Furthermore, the court properly took the position that since mens rea was an essential element of forcible assault under section 111, the defense of “mistake in fact” was available to the defendant, and the jury could take into account, in that connection, whether defendant knew or should have known that he was assaulting a law enforcement officer.⁵ Thus, as the case was submitted to the jury, defendant’s evidence as to his lack of knowledge of Mr. St. Germain’s official status was relevant to his defense. His claim of prejudice is therefore reduced, essentially, to the assertion that the emphasis of his presentation, rather than its substance, was adversely affected by the error in the indictment.

We would not think defendant’s substantial rights were affected had no other error occurred; but two other errors in the course of trial also adversely affected the presentation of the defense.

When defendant intervened, Mr. St. Germain was attempting to arrest a demonstrator who had admitted, in response to Mr. St.Germain’s questioning, that he was of draft age and did not have a Selective Service registration card in his possession. Defendant submitted a written offer of proof that binding instructions had been issued to United States marshals not to make an arrest for non-possession of a draft card unless the alleged violation had been investigated by the Selective Service System and that agency had requested action. The proof was not offered to challenge the legality of the arrest, but to establish that at the time of the incident Mr. St.Germain was not “engaged in * * * the performance of his official duties,” as required by section 111. The trial court rejected the offer.

The proffered evidence apparently was rejected on the ground that Mr. St. Germain was authorized by statute (18 U.S.C. § 3053) to make an arrest without a warrant for an offense against the United States committed in his presence, as he was engaged in doing, and the offer of proof related only to “an internal administrative matter” which could not alter the statute.

However, 28 U.S.C. § 569(c) vests authority in the Attorney General to “supervise and direct United States marshals in the performance of public duties * * * ” ;⁶ and we have no doubt that under this broad grant of authority the Attorney General could properly limit the occasions upon which United States marshals and their deputies might exercise the general statutory power to make arrests. It was error, therefore, to reject the offer of proof as irrelevant, assuming its truth.⁷

Defendant also challenges the limitation imposed upon the cross-examination of Mr. St.Germain. Defendant was permitted to bring out that Mr. St.Germain entered the United States Marine Corps at seventeen, served in the Corps for twenty years, and became a deputy marshal a few months after his retirement from the Corps, about a year and a half before the incident in question. Defendant then sought to inquire of Mr. St. Germain whether he had any bias or prejudice — any feelings of opposition, anger, or bitterness — toward persons who participated in anti-draft and antiwar demonstrations, and hence against defendant as a part of that group, which might color or influence his testimony.⁸

The government objected to this line of questioning, and the objection was sustained. Although the ground of the court’s action is not stated, there is an intimation that the court may have felt that the inquiry was not directly related to the witness’s bias or prejudice toward the defendant as an individual, and was improper for that reason.

The law recognizes “the force of a hostile emotion, as influencing the probability of truth-telling * * *; and a partiality of mind is therefore always relevant as discrediting the witness and affecting the weight of his testimony.” 3 Wigmore, Evidence § 940, at 493 (3d ed. 1940). See also Wynn v. United States, 130 U.S.App.D.C. 60, 397 F.2d 621, 623-624 (1967); C. McCormick, Evidence § 40 at 81-82 (1950). Prejudice toward a group of which defendant is a part may be a source of partiality against the defendant. He is therefore entitled to a reasonable opportunity to cross-examine witnesses as to the existence of any such prejudice, and its possible effect upon their testimony. Jacek v. Bacote, 135 Conn. 702, 68 A.2d 144, 146 (1949); Magness v. State, 67 Ark. 594, 50 S.W. 554, 59 S.W. 529 (1899); see also People v. Christie, 2 Abb.Pr. 256, 259, 2 Park.Cr.R. 579, 583 (N.Y.S.Ct. 1st D.1855); United States v. Lee Huen, 118 F. 442, 463 (N.D.N.Y.1902) (dictum).

The government argues that the error in denying defendant the opportunity to cross-examine Mr. St.Ger-main in this respect was harmless.

Mr. St.Germain was the government’s sole witness. His testimony was in substantial conflict with that of defendant’s witnesses on several critical matters, notably the appearance of the attempted arrest to uninformed bystanders, the amount of force used by the officers and the nature of defendant’s intervention, including the force which he used.

Complete foreclosure of cross-examination as to a subject matter relevant to the witness’s credibility, which may have deprived the jury of access to information bearing upon the trustworthiness of crucial testimony, cannot be treated either as falling within the court’s discretion, or as harmless error. See, e.g., Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); Gordon v. United States, 344 U.S. 414, 417, 423, 73 S.Ct. 369, 97 L.Ed. 447 (1953); see also District of Columbia v. Clawans, 300 U.S. 617, 630-631, 57 S.Ct. 660, 81 L.Ed. 843 (1937); United States v. Palermo, 410 F.2d 468, 472 (7th Cir.1969); McConnell v. United States, 393 F.2d 404, 406 (5th Cir. 1968); Grant v. United States, 368 F.2d 658, 661 (5th Cir.1966).

Moreover, as we have said, our conclusion that defendant’s substantial rights were affected rests upon the cumulative impact of the errors which occurred.

Reversed and remanded for a new trial.

1 . 18 U.S.C. § 111 reads:

“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.”

The persons designated in 18 U.S.C. § 1114 include “any United States marshal or deputy marshal * *

2 . Decisions to the same effect subsequent to McEwen, include Burke v. United States, 400 F.2d 866 (5th Cir. 1968); Pipes v. United States, 399 F.2d 471 (5th Cir. 1968). Earlier authorities holding that such knowledge is a necessary element of the offense are collected in United States v. Chunn, 347 F.2d 717, 721 n. 13 (4th Cir. 1965), and United States v. Wallace, 368 F.2d 537, 538 n. 1 (4th Cir. 1965).

3 . All common-law crimes, with the exception of public nuisance, required mens rea as well as actus reus. Bishop, Criminal Law 192 (9th ed. 1923), Kenny, Outlines of Criminal Law 20,337-38 (16th ed. Turner 1952); Perkins, Criminal Law 829 (1957).

4 . Forcible assault clearly does not come within the class of “public welfare offenses” which the legislature might wish to punish regardless of the actor’s intent. Perkins, supra, 830-31, Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55, 83 (1933); 111 U.Pa.L.Rev. 506, 508 (1963).

5 . Where bad purpose is an element of an offense, a mistake of fact which negates the existence of that state of mind is necessarily a defense. Therefore it is a defense to a charge involving mens rea that the defendant reasonably believed the facts to be other than they were if his act would have been innocent had the facts been as defendant reasonably believed them to be. Bee Bishop, supra, 204-05; Perkins, supra, 825; 1 Wharton, Criminal Law and Procedure 382; Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv.L.Rev. 75, 82; Model Penal Code § 2.04, Comment (Tent.Draft No. 4, 1955). This defense is available to a “Good Samaritan” charged with assault and battery as a result of his intervention, under a reasonable but mistaken apprehension of the facts, on behalf of a person resisting arrest. Perkins, supra, 883, 910-11; Model Penal Code §§ 3.04 and 3.05 (Tent. Draft No. 8, 1958). But see People v. Young, 11 N.Y.2d 274, 229 N.Y.S.2d 1, 183 N.E.2d 319 (1962), criticized in 63 Colum.L.Rev. 160 (1963) and 111 U.Pa.L.Rev. 506 (1963).

The defense is available in prosecutions for forcible assault under 18 U.S.C. § 111. Since all of the justifications for recognizing the defense with regard to common-law offenses apply equally to the statutory codifications of such offenses, the defense is applicable to statutory offenses unless excluded expressly or by reasonable implication. People v. Vogel, 46 Cal.2d 798, 299 P.2d 850, 855 (1956). As noted, the defense arises by necessary implication from the requirement of mens rea in such offenses. Unless the defense is allowed, conduct which is blameless by definition, and often highly commendable, is branded as criminal; punishment is imposed for no rational purpose; uneven enforcement of the statute is encouraged; and public confidence and respect for the law is diminished. See Dubin, Mens Rea Reconsidered: A Plea for a Due Process Concept of Criminal Responsibility, 18 Stan.L.Rev. 322 (1966); Hart, The Aims of the Criminal Law, 23 L. & Contemp. Problems 401, 422 (1958); 63 Colum.L.Rev. 160 (1966); 111 U.Pa.L.Rev. 506 (1966).

In the only case to directly confront the issue, the Seventh Circuit recently held that the defense is available in prosecutions under section 111, United States v. Grimes, 413 F.2d 1376 (1969). This view is impliedly supported in Burke v. United States, 400 F.2d 866, 867-868 (5th Cir. 1968); United States v. Heliczer, 373 F.2d 241, 249 (2d Cir. 1967); United States v. Wallace, 368 F.2d 537, 538 (4th Cir. 1966). (In citing Grimes and Heliczer we do not mean to approve any suggestion in these opinions that knowledge possessed by the person whom the defendant seeks to aid, but not by the defendant, may be relevant to the defense. See Perkins, supra, 911-12.)

6 . 28 C.F.R. § 0.5(a) provides that the Attorney General shall “Supervise and direct the administration and operation of the Department of Justice, including the offices of * * * United States Marshals, which are within the Department of Justice.”

7 . The record suggests that the offer of proof may not have been well founded, and it would have been entirely appropriate for the court to require that the good faith of the offer be supported by calling the witness and making some inquiry before acting upon the offer. Scotland County v. Hill, 112 U.S. 183, 186, 5 S.Ct. 93, 28 L.Ed. 692 (1884); see C. McCormick, Evidence § 51, at 113 (1954). The court did not adopt that course in this case and we must presume that the offer was made in good faith. Scotland County v. Hill, supra; see also Platte Valley Cattle Co. v. Bosserman-Gates Live Stock & Loan Co., 202 F. 692, 694, 45 L.R.A.,N.S., 1137 (8th Cir. 1912), and cases there cited.

We find no merit in defendant’s contentions that Mr. St. Germain was not engaged in the performance of his official duties because the arrest was made in violation of the arrested demonstrator’s First and Fifth Amendment rights, and the principles of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).

8 . The government argues that the defendant’s initial questions were too general, and were not followed by additional questions directed specifically to whether the witness’s ability to observe, recollect, and testify accurately may have been impaired by his emotional involvement. It is clear from the record, however, that the defendant intended to raise the general issue of his right to cross-examine with respect to the subject matter, and not merely the propriety of the particular questions which had been put to the witness, and that the court ruled on the general issue.