United States v. Lombardozzi

Citation335 F.2d 414
Decision Date04 August 1964
Docket NumberNo. 505,Docket 28783.,505
PartiesUNITED STATES of America, Appellee, v. John Joseph LOMBARDOZZI, Daniel Joseph Marino, Michael Joseph Zampello, Camillo Charles Lombardozzi and George Lombardozzi, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

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.

Certiorari Denied November 16, 1964. See 85 S.Ct. 261.

MOORE, Circuit Judge.

The five appellants appeal from a judgment of conviction entered upon a jury 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 dutes, 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 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 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."

Many statutes creating crimes contain such requirements as "knowingly," "with knowledge," "intentionally" and "with intent." No such prerequisite has been written by Congress into section 111 although it could easily have made knowledge an essential ingredient. The meager legislative history suggests that in section 111 Congress merely sought to provide a federal forum for the trial of cases involving various offenses against federal officers in the performance of official duties. See Ladner v. United States, 358 U.S. 169, 174-177, 79 S.Ct. 209, 212, 213, 3 L.Ed.2d 199 (1958). 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.

Appellants attack the sufficiency of the evidence that agent Foley was assaulted while engaged in the performance of his official duties. The record clearly establishes the agent's assignment by his superiors to be present at the funeral of Carmello Lombardozzi and to conduct a photographic and visual surveillance of such events as might there occur and of such persons present as might be the subjects of federal investigation. While so engaged, the agent was assaulted by appellants in front of the Church of the Immaculate Heart of Mary in Brooklyn, New York. The trial court in his charge fairly presented the factual question of whether the agent was engaged in official duty. The jury's verdict was determinative.

During cross-examination appellants sought...

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47 cases
  • 43 541 United States v. Feola 8212 1123
    • United States
    • U.S. Supreme Court
    • 19 March 1975
    ...that the person assaulted is a federal officer.' Id., at 525. 8. The Second Circuit consistently has so held. See, e.g., United States v. Lombardozzi, 335 F.2d 414, 416, cert. denied, 379 U.S. 914, 85 S.Ct. 261, 13 L.Ed.2d 185 (1964); United States v. Montanaro, 362 F.2d 527, 528, cert. den......
  • United States v. Fernandez, 72-2088
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 13 May 1974
    ...Cir. 1969); McEwen v. United States, 390 F.2d 47 (9th Cir. 1968). Both McEwen and Kartman rely in large part upon United States v. Lombardozzi, 335 F.2d 414 (2d Cir. 1964), cert. denied, 379 U.S. 914, 85 S.Ct. 261, 13 L.Ed.2d 185 (1964). Thus, in McEwen, in reference to Section 111, this co......
  • United States v. Kartman
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 9 October 1969
    ...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. Acceptance of this conclusion, however, establishes......
  • U.S. v. Southard
    • United States
    • U.S. Court of Appeals — First Circuit
    • 28 January 1983
    ...1155 (3d Cir.1971). Had Congress intended otherwise, "it could easily have made knowledge an essential ingredient." United States v. Lombardozzi, 335 F.2d 414, 416 (2d Cir.), cert. denied, 379 U.S. 914, 85 S.Ct. 261, 13 L.Ed.2d 185 in United States v. Perkins, 488 F.2d 652 (1st Cir.1973), c......
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