U.S. v. Clemons, 93-6328

• Decision Date: 22 September 1994
• Docket Number: No. 93-6328,93-6328
• Citation: 32 F.3d 1504
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eugene Milton CLEMONS, II, a/k/a "Gene", a/k/a "Dean", Dedrick Germond Smith, a/k/a Derrick, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1504

32 F.3d 1504

UNITED STATES of America, Plaintiff-Appellee, v. Eugene Milton CLEMONS, II, a/k/a "Gene", a/k/a "Dean", Dedrick Germond Smith, a/k/a Derrick, Defendants-Appellants.

No. 93-6328.

United States Court of Appeals, Eleventh Circuit.

Sept. 22, 1994.

Tommy Nail, Jo Alison Taylor, co-counsel, Birmingham, AL, for Eugene Milton Clemons.

J. Louis Wilkinson, Birmingham, AL, for Dedrick Germond Smith.

Jack W. Selden, U.S. Atty., Robert J. McLean, John E. Ott, Bill Barnett, Asst. U.S. Atty., Birmingham, AL, for appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT, Chief Judge, KRAVITCH, Circuit Judge, and CLARK, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Eugene Clemons and Dedrick Smith were convicted of murdering a federal agent engaged in the performance of his official duties in violation of 18 U.S.C. Secs. 1111 and 1114. In addition, Clemons was convicted of using and carrying a firearm in the commission of a crime of violence, in violation of 18 U.S.C. Sec. 924(c). We affirm both convictions. The primary issue presented involves defining "official duties" under Section 1114.

I.

George Douglas Althouse was a Special Agent of the U.S. Drug Enforcement Administration (DEA) assigned to the Birmingham, Alabama office. As part of his duties, Althouse worked on an investigation with Sergeant Mark Hobbs of the Hoover, Alabama Police Department. Hobbs and Althouse planned to meet on the evening of Thursday, May 28, 1992 between 10:00 and 11:00 p.m. to discuss search warrants to be executed the following day. Jefferson County Sheriff's Deputy Naylor Braswell, Althouse's housemate, agreed to accompany Althouse to the meeting with Hobbs. Braswell and Althouse left for the meeting shortly before 10:00 p.m. in Braswell's undercover automobile, a black Model Z-28 Camaro. En route, they stopped at a Chevron service station. Braswell went into the station to obtain the telephone number for a pizza delivery source. Althouse remained in the car. During the brief interval, Althouse appears to have made a phone call to his girlfriend from the car's cellular phone. While inside the service station, Braswell suddenly observed an individual sitting in the driver's seat of the Camaro and pointing a gun to Althouse's head. Moments later Braswell heard several shots and saw Althouse exit the car. Althouse fired his weapon at the Camaro as it sped away. Althouse died shortly thereafter from gunshot wounds.

Testimony offered at trial revealed that prior to the murder Dedrick Smith had told several individuals, including Clemons, that he needed an engine for his Z-28 Camaro. On the evening of the murder, Smith, Clemons and a third individual, Kenny Reed, drove to a shopping center looking for a suitable car for Smith. Failing to find such a vehicle, they proceeded onto the highway. When Clemons spotted a Z-28 Camaro in a Chevron service station, they stopped and Clemons, carrying a gun, exited the car. Smith and Reed were driving to a nearby parking lot to wait for Clemons when they heard several gunshots and observed Clemons, driving the Camaro, pull out of the Chevron station at high speed. Clemons drove to the house of a friend, Herman Shannon. After examining the contents of the car, Clemons and Shannon concluded that it was likely a police vehicle. Both Clemons and Smith subsequently left town. Clemons was arrested in Cleveland, Ohio on June 6. Smith was arrested in Birmingham several days later. Both were convicted by a jury of murdering Agent Althouse.

Clemons raises three substantive claims on appeal: (1) that the evidence was insufficient to show that the victim was a federal agent engaged in the performance of his official duties at the time of the murder; (2) that the court abused its discretion in admitting into evidence prior-similar-acts testimony; and (3) that the court abused its discretion in admitting into evidence a waiver and confession executed by Clemons in connection with a juvenile adjudication. ¹

Smith contends that the court erred in allowing the government to impeach Clemons by using Clemons's unredacted confession implicating Smith and in permitting him to be cross-examined by Clemons regarding irrelevant and prejudicial matters.

II.

According to Clemons, the evidence presented at trial was insufficient to prove that Althouse was an agent engaged in the performance of his official duties within the meaning of 18 U.S.C. Sec. 1114. Because the question raised speaks to the court's jurisdiction in this matter, our review is plenary.

18 U.S.C. Sec. 1114 provides, in pertinent part:

Whoever kills or attempts to kill any ... officer or employee of the Secret Service or of the Drug Enforcement Administration ... engaged in or on account of the performance of his official duties ... shall be punished as provided under sections 1111 and 1112 of this title, except that any such person who is found guilty of attempted murder shall be imprisoned for not more than twenty years.

There is no bright-line test to define "performance of official duties" under the statute. While time and place may be of decisive importance in many cases, in others the mission may be of critical importance. United States v. Hoffer, 869 F.2d 123, 125 (2d Cir.1989), citing United States v. Boone, 738 F.2d 763, 765 (6th Cir.), cert. denied, 469 U.S. 1042, 105 S.Ct. 528, 83 L.Ed.2d 416 (1984). In essence, whether a federal officer is engaged in the performance of his or her official duties turns on whether the federal officer is acting within the scope of what he or she is employed to do, or is engaging in a purely personal frolic. United States v. Streich, 759 F.2d 579 (7th Cir.1985), citing United States v. Heliczer, 373 F.2d 241 (2d Cir.), cert. denied, 388 U.S. 917, 87 S.Ct. 2133, 18 L.Ed.2d 1359 (1967).

Courts of Appeals have concluded that a federal agent is acting within the scope of his or her official duties in a variety of circumstances. In United States v. Stephenson, 708 F.2d 580 (11th Cir.1983), for instance, an FBI agent was assaulted and robbed of her purse as she walked from her car toward the FBI Building. Her purse contained her service revolver, an FBI badge and identification. Reasoning that the agent was "on her way to report for work at the FBI office," and that, in struggling with her assailant, "she was properly attempting to prevent theft of federal property," id. at 581, we concluded that the evidence was sufficient for a trier of fact to find that the agent was engaged in the performance of her official duties. Similarly, in United States v. Hoffer, 869 F.2d 123 (2d Cir.1989), a DEA agent had completed her assigned surveillance but remained "on call" when she was assaulted near her car. The court pointed to the fact that the agent was returning from her assignment; that she was in a government-owned vehicle which she was duty-bound to protect; and that she was "on call" for further assignment in support of its determination that the agent was discharging her official mission at the time of the assault. See id. at 126. See also, United States v. Streich, 759 F.2d 579 (7th Cir.1985) (where IRS agents were in course of repossessing appellant's vehicle when assaulted, agents held to be in course of official duties); United States v. Boone, 738 F.2d 763 (6th Cir.1984) (federal judge assaulted while walking to the federal courthouse on a Sunday evening in order to conduct legal research was engaged in her official duties); United States v. Lopez, 710 F.2d 1071 (5th Cir.1983) (federal agent assaulted while detaining a state-charged suspect held to be performing official duties); United States v. Reid, 517 F.2d 953 (2d Cir.1975) (where DEA agent was obligated to take action to prevent a violation of state law even when off-duty, agent shot while attempting to stop a robbery was engaged in his official duties).

Bearing in mind the fact-specific nature of our inquiry, we conclude that a jury could have determined beyond a reasonable doubt that agent Althouse was engaged in the performance of his official duties at the time of his murder. As stated earlier, our case law dictates that a federal officer on his or her way to work is engaged in the performance of official duties. See United States v. Stephenson, supra. Contrary to Clemons's suggestion, we decline to conclude as a matter of law that such an officer is no longer acting within the ambit of federal employment if he or she, before arriving either at the office or at a work-related meeting at another location, stops momentarily to make a telephone call. Surely this manner of detour does not constitute a "frolic" as envisioned by the court in its articulation of the scope of federal duties. See, United States v. Streich, supra. Althouse was on his way to a meeting concerning an investigation being conducted jointly by the DEA and the local police department. Sergeant Hobbs, the Hoover police detective whom Althouse planned to meet that evening, testified that on the occasions he and Althouse worked together their schedule was often erratic, leading them at times to work late at night. As such, it is not unreasonable to infer that they might have, on occasion, arranged during working hours for some form of food. In this instance, they intended to meet at approximately 10:30 p.m. to discuss obtaining search warrants the next day. Althouse merely stopped briefly to order dinner while en route to the meeting involving his duties as a DEA agent. Accordingly, we conclude that the evidence in this case was sufficient for a jury reasonably to have found that Althouse's conduct fell within the range of his prescribed, official duties.

III.

Clemons next contends that the court improperly admitted evidence of prior uncharged misconduct. This court reviews the decision to admit extrinsic act evidence under Fed.R.Evid. 404(b) for clear abuse of discretion. United States v. Erin, 778 F.2d 722,...