United States v. Thomas F. Danehy

680 F.2d 1311, 1982 U.S. App. LEXIS 17885, 10 Fed. R. Serv. 1581
CourtCourt of Appeals for the Eleventh Circuit
DecidedJune 29, 1982
Docket81-5216
StatusPublished
Cited by45 cases

This text of 680 F.2d 1311 (United States v. Thomas F. Danehy) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Thomas F. Danehy, 680 F.2d 1311, 1982 U.S. App. LEXIS 17885, 10 Fed. R. Serv. 1581 (11th Cir. 1982).

Opinions

PER CURIAM:

Thomas Danehy appeals his conviction under 18 U.S.C. §§ 2, 111, and 1114 for [1313]*1313forcibly resisting, opposing, impeding, and interfering with Coast Guardsmen while they were engaged in the performance of their duties. We reverse his conviction and remand for a new trial below.

The facts of the case are much in dispute. Nevertheless, we shall try to describe generally what took place on the night of March 22, 1980. A distress call came into the Coast Guard Station at Cortez, Florida that night. Two Coast Guard personnel were dispatched in a seventeen-foot, open deck, tri-hulled craft to search for the distressed vessel. They were ordered to search the Intracoastal Waterway between Cortez and Sarasota Bay.

During this time the appellant, his wife, and his neighbors were cruising in the In-tracoastal Waterway aboard Danehy’s twenty-eight foot sport fisherman, the Not for Fishing. The two vessels met just north of Sarasota Bay. The Coast Guardsmen claim they hailed the appellant’s vessel and inquired whether it was overdue. The people aboard Danehy’s boat, however, claim no conversation ever took place and that they merely saw a small unlit vessel hovering in the shadows. Both sides are agreed, however, that contact was soon broken off with Danehy going north towards Bradenton and the Coast Guardsmen heading south towards Sarasota.

Later, the Coast Guard craft turned back to the north. The Coast Guardsmen claim that Danehy’s boat attempted to ram them. They maneuvered their vessel out of the way, and the appellant began steering his boat in circles, causing the Coast Guard boat’s motor to cavitate forcing it to stop dead in the water. The Coast Guardsmen claim that Danehy’s vessel headed directly towards them, only turning away when they displayed their weapons.

Danehy has a different version of these events. He claims that an unknown craft running at full speed and without lights closed upon his vessel quickly. Danehy claims he became apprehensive and engaged in evasive maneuvers. He asserts that he tried to flee into a residential development.

Both sides are agreed that Danehy ran aground. The Coast Guardsmen radioed to Cortez for assistance and a Coast Guard cutter and two Manatee County deputies came to their aid. Two more Coast Guardsmen reinforced those already on the seventeen-foot craft. Here, again, the two accounts differ as to what transpired.

The Coast Guardsmen assert that the cutter turned on its blue light, that they identified themselves through a loud hailer, and that they informed Danehy that he should prepare to be boarded. The seventeen-foot craft then proceeded alongside Danehy’s boat. Someone, according to this version, aboard Danehy’s craft responded with obscenities that they would not be allowed to board. They then boarded the vessel. The Coast Guardsmen claim that while being frisked and handcuffed, Danehy rammed one of their number into the bulkhead twice and began kicking at the Coast Guardsmen. He had to be bodily carried off his vessel.

Danehy and his passengers give a different account of these events. They claim that the Coast Guard boarded without warning or requesting permission and with drawn weapons. Danehy was ordered on deck and after a considerable period arrested. He claims he was handcuffed and forced to kneel. He asserts that when he attempted to stand he was knocked down and that he never attempted to kick anyone. He claims that he passively resisted and remained limp, thereby forcing the Coast Guardsmen to carry him off the vessel.

Both sides agree that all the passengers were then taken off Danehy’s boat. They boarded the Coast Guard cutter and arrived at Cortez early in the morning of March 23.

The appellant claims the trial court made three reversible errors. We turn to the first of these, the contention that the district court should have allowed Danehy to call three witnesses to testify to his reputation for truthfulness.

[1314]*1314I.

Danehy claims that under United States v. Hewitt, 634 F.2d 277 (5th Cir. 1981), he should have been allowed to introduce evidence of his reputation for truthfulness as his credibility had been attacked. We disagree.

We addressed precisely this issue in United States v. Jackson, 588 F.2d 1046, 1055 (5th Cir. 1979). There, as here, the “attack” on the defendant’s credibility consisted of a vigorous cross-examination and the pointing out by the prosecutor of discrepancies between the defendant’s testimony and that of other witnesses. This does not call into question the reputation of the defendant for truthfulness. The mere fact that a witness is contradicted by other evidence in a case does not constitute an attack upon his reputation for truth and veracity. Kauz v. United States, 188 F.2d 9 (5th Cir. 1951).

Danehy claims that under Rule 404 of the Federal Rules of Evidence an accused may always bring forth evidence of a pertinent character trait and that his reputation for truth is pertinent in the instant case. We reject this line of reasoning. Since Danehy is trying to offer evidence to bolster himself as a witness rather than to show a trait of character that is pertinent to the crime charged, it is Federal Rule of Evidence 608, not 404, that governs. Rule 608 specifically states that “evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.” Government counsel pointing out inconsistencies in testimony and arguing that the accused’s testimony is not credible does not constitute an attack on the accused’s reputation for truthfulness within the meaning of Rule 608. Thus, Danehy may not attempt to bolster his testimony by evidence as to his reputation for truthfulness. Therefore, the district court properly denied Danehy’s request to call witnesses to testify to his reputation for truthfulness.

II.

Danehy’s second contention is that the trial court gave an improper jury instruction on whether it was necessary that Da-nehy know it was federal officers he was resisting. Tied in with this is Danehy’s claim that he was improperly denied an instruction to the jury on the subject of resisting an unlawful arrest.

Danehy’s theory of defense was that actions, if any, taken by him prior to the boarding of his vessel were justified because he did not know the identity of his pursuers and therefore he was acting in defense of his person and his property. After boarding, Danehy claims that his resistance, if any, was justified as resisting an illegal arrest.

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Bluebook (online)
680 F.2d 1311, 1982 U.S. App. LEXIS 17885, 10 Fed. R. Serv. 1581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-thomas-f-danehy-ca11-1982.