United States v. Wallace

• Decision Date: 27 October 1966
• Docket Number: No. 10712.,10712.
• Citation: 368 F.2d 537
• Parties: UNITED STATES of America, Appellee, v. Theodore Roosevelt WALLACE, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

368 F.2d 537 (1966)

UNITED STATES of America, Appellee, v. Theodore Roosevelt WALLACE, Appellant.

No. 10712.

United States Court of Appeals Fourth Circuit.

Argued October 4, 1966.

Decided October 27, 1966.

Donald R. Taylor, Williamsburg, Va. (Court-appointed counsel), for appellant.

Roger T. Williams, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and BOREMAN and CRAVEN, Circuit Judges.

HAYNSWORTH, Chief Judge.

Wallace complains of his conviction of a violation of 18 U.S.C.A. § 111 as a result of an assault committed by him upon an agent of the Alcohol and Tobacco Tax Division. His complaint is that the District Court, to whom the case was tried without a jury, did not specifically resolve the factual question of the defendant's knowledge, at the time of the assault, that the victim was a federal agent. Even if that knowledge was absent at the time, we think the statutory offense was committed and the defendant properly convicted.

The defendant was working in an illicit still when it was raided by law enforcement officials, among them, an agent of the Alcohol and Tobacco Tax Division. According to the officers, the federal agent announced and identified himself, but the defendant claimed that he heard no such announcement and did not recognize the intruder. He struck at and hit the federal agent with a heavy stick or club before he was subdued.

Though the record would have abundantly justified a specific finding that the defendant did know that the man who approached him was a federal revenue agent, the District Court, nevertheless, declined to make that specific finding upon the ground that such knowledge was not an essential element of the offense.

In this posture of the case, we would be required to remand the case for additional findings of fact, unless we accept the District Court's theory of the reach of the statute. We do agree with it on that score, and, accordingly, affirm.

Title 18, § 111 prescribes a penalty for a forcible assault upon or interference with a federal official as defined in § 1114 while the official is "engaged in or on account of the performance of his official duties." The statute contains no words which can reasonably be said to require that the actor know at the time that the victim of the assault, or the person with whom he interferes, is a federal officer engaged in his official duty.

In many cases it has been assumed that the requirement of scienter was implicit in the statute. The assumption probably sprang from Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419, dealing with a different statute of somewhat similar purpose. Such an assumption was made by this Court in Owens v. United States, 4 Cir., 201 F.2d 749, where the issue tendered was the sufficiency of the record to support the finding that the defendant did know the official status of the victim. More recently, in United States v. Chunn, 4 Cir., 347 F.2d 717, we noted the difference of opinion on the subject, but felt it unnecessary to take a firm stand one way or another, since, in that case, it clearly appeared that the defendant did have such knowledge. There is no other case referring to the question in this Court, so that, in this jurisdiction, it is unresolved.

Elsewhere there have been a number of cases holding or assuming that actual knowledge of the federal official status of the victim was a necessary element of the offense.¹

In McNabb v. United States, 6 Cir., 123 F.2d 848, reversed on other grounds, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, it was held that scienter is not a necessary element of an offense under 18 U.S.C.A. § 1114. That Section makes it unlawful to kill an officer of the United States while engaged in the performance of his official duties or on that account, and, with respect to the legal issue before us, it is indistinguishable from the related § 111. Nonfatal wounding of a federal officer engaged in his official duty requires no more specific intention than § 1114 requires upon a fatal wounding. This was recognized by the Fifth Circuit in Bennett v. United States, 5 Cir., 285 F.2d 567, in which it was held that specific knowledge of the official position of the victim was not an essential element of an offense under § 111.

More recently, the same position has been taken by the Second Circuit in United States v. Lombardozzi, 2 Cir., 335 F.2d 414, and that position was quite recently reaffirmed in United States v. Montanaro, 2 Cir., 362 F.2d 527.

As the Court of Appeals for the Second Circuit observed in Lombardozzi, "the meager legislative history suggests that in section 111 ...