335 F.2d 414 (2nd Cir. 1964), 505, United States v. Lombardozzi

Docket Nº:505, 28783.
Citation:335 F.2d 414
Party Name:UNITED STATES of America, Appellee, v. John Joseph LOMBARDOZZI, Daniel Joseph Marino, Michael Joseph Zampello,Camillo Charles Lombardozzi and George Lombardozzi, Defendants-Appellants.
Case Date:August 04, 1964
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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335 F.2d 414 (2nd Cir. 1964)

UNITED STATES of America, Appellee,


John Joseph LOMBARDOZZI, Daniel Joseph Marino, Michael Joseph Zampello,Camillo Charles Lombardozzi and George Lombardozzi, Defendants-Appellants.

No. 505, 28783.

United States Court of Appeals, Second Circuit.

Aug. 4, 1964

Argued June 9, 1964.

Certiorari Denied Nov. 16, 1964.

See 85 S.Ct. 261.

Raymond Bernhard Grunewald, Asst. U.S. Atty. (Joseph P. Hoey, U.S. Atty., for Eastern Dist. of New York, Brooklyn, N.Y., of counsel), for the United States.

William Sonenshine, Brooklyn, N.Y. (Evseroff, Newman & Sonenshine, Gustave H. Newman, Brooklyn, N.Y., of counsel), for defendants-appellants.

Before MOORE, SMITH and MARSHALL, Circuit Judges.

MOORE, Circuit Judge.

The five appellants appeal from a judgment of conviction entered upon a jury

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verdict. The one count indictment charged them with assault upon an agent of the Federal Bureau of Investigation in violation of 18 U.S.C.A. § 111. This statute states:

'§ 111. Assaulting, resisting, or impeding certain officers or employees. '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.'

Section 1114 includes 'any officer or employee of the Federal Bureau of Investigation of the Department of Justice.'

Appellants assert as their principal points (1) that proof of knowledge of the official capacity of the person assaulted is an essential element of the crime charged and that the trial court erred in refusing to submit the issue of knowledge to the jury; and (2) that there was no evidence that the agent was 'engaged in * * * the performance of his official duties.'

The necessity of establishing knowledge as a matter of law was met directly by the trial court in his charge wherein he stated:

'The Government is not required to prove that the defendants or any of them had knowledge that Foley was so employed and engaged * * *.'

Appellants rely primarily on a statement in Pettibone v. United States, 148 U.S. 197, 205, 13 S.Ct. 542, 546, 37 L.Ed. 419 (1892), wherein Mr. Chief Justice Fuller said, 'It is the official character that creates the offense, and the scienter is necessary.' In United States v. Taylor, 57 F. 391, 392, 393 (C.C.E.D.Va.1893), a district judge dismissed indictments which failed to allege 'knowing that they were officers of the United States, engaged in performing duties imposed by laws of the United States' and said in a case involving an assault upon a federal officer, 'In such cases the scienter is an essential ingredient of the offense.' In Hargett v. United States, 183 F.2d 859 (5 Cir. 1950), the Fifth Circuit took cognizance of Pettibone and, Taylor and also reviewed cases in the Fifth, Sixth, Seventh and Eighth Circuits, [*] all holding on the facts therein that scienter was a necessary ingredient of crimes against federal officers. However, in Bennett v. United States, 285 F.2d 567 (5 Cir. 1960), cert. denied, 366 U.S. 911, 81 S.Ct. 1087, 6 L.Ed.2d 236 (1961), the Fifth Circuit directly answered the argument that 'knowledge of the official character of the person assaulted is necessary to constitute the crime of which he was charged,' by saying that it was not persuaded 'that the indictment was insufficient because it failed to include the element of scienter.' The reason advanced for this conclusion was that:

'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 court also relied upon the opinion in McNabb v. United States, 123 F.2d 848, 855 (6th Cir.), rev'd on other grounds, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1942), certiorari denied after

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retrial, 323 U.S. 771, 65 S.Ct. 114, 89 L.Ed. 616 (1944), in part, as follows:

'In the language of the statute quoted in excerpt, no exemption is expressly made of a killer who does not...

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