429 F.2d 956 (8th Cir. 1970), 19739, United States v. Leach

Docket Nº:19739, 19740, 19773, 19775.
Citation:429 F.2d 956
Party Name:UNITED STATES of America, Appellee, v. Jacki Eugene LEACH, Appellant. UNITED STATES of America, Appellee, v. Robert Lewis FARRIS, Appellant. UNITED STATES of America, Appellee, v. Roy Malcolm ROBERTS, Appellant. UNITED STATES of America, Appellee, v. Carl Houston ROBERTS, Appellant.
Case Date:July 23, 1970
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 956

429 F.2d 956 (8th Cir. 1970)

UNITED STATES of America, Appellee,

v.

Jacki Eugene LEACH, Appellant.

UNITED STATES of America, Appellee,

v.

Robert Lewis FARRIS, Appellant.

UNITED STATES of America, Appellee,

v.

Roy Malcolm ROBERTS, Appellant.

UNITED STATES of America, Appellee,

v.

Carl Houston ROBERTS, Appellant.

Nos. 19739, 19740, 19773, 19775.

United States Court of Appeals, Eighth Circuit.

July 23, 1970

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Raymond A. Bruntrager, and Louis Gilden, St. Louis, Mo., on brief for appellants.

John A. Newton, Asst. U.S. Atty., St. Louis, Mo., for appellee; Daniel Bartlett, Jr., U.S. Atty., on the brief.

Before MEHAFFY, HEANEY and BRIGHT, Circuit Judges.

MEHAFFY, Circuit Judge.

The four defendants appeal from their convictions under a two-count indictment, each count charging the assault of an officer of the Bureau of Narcotics with a dangerous weapon in violation of 18 U.S.C. § 111. 1 Count I charged an assault upon Dennis Moriariy (referred to in the transcript and in the government's brief as 'Moriarty') and Count II an assault upon William McNamara. A sentence of ten years' imprisonment was imposed on each defendant under each count, said sentences to be served concurrently. The sentence imposed upon defendant Roy Roberts was made subject to 18 U.S.C. § 4208(a)(2), which makes him eligible for parole at such time as the board of paroles may determine. We affirm.

According to the government's witnesses, Agent McNamara entered a bar in St. Louis known as Robbie's Corner Tavern shortly after 10:00 p.m. on December 30, 1968, in the course of an official investigation for violation of the Federal Narcotics Act. The door was locked but Roy Roberts, one of the defendants, opened the door for him. He ordered a drink and sat there and talked with Roberts for a few minutes, stating during the course of the conversation that he was from Chicago. About fifteen

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minutes later, the other agent, Moriarty, and an informer by the name of Gentile came to the door and were admitted. They started playing the bowling machine and overheard Roy Roberts make a phone call requesting that Carl (his son) come to the tavern. A short time later the other three defendants, Carl Roberts, Jacki Leach and Robert Farris, came into the tavern. After a conversation with Roy Roberts, they told Gentile to get his friend out of there and that they did not want to do business with him any more. The agents heard a thud and saw Gentile on the floor. Roy Roberts pulled a pistol on Moriarty and asked him who he was. He replied that he was a Federal Narcotics Agent and showed his badge. Then Roberts said he didn't care who he was and hit him under the left eye with the gun. He then took Moriarty's gun and gave it to Leach who held the pistol on Moriarty. Carl Roberts remained at the front door and Roy Roberts went to McNamara and asked him who he was. When McNamara also replied that he was a Federal Narcotics Agent, Roberts said that he would kill him and cocked the pistol and pulled the trigger, but the gun malfunctioned. McNamara was then beaten about the head and hands by Roberts, causing him to fall to the floor. McNamara's gun also fell on the floor and was picked up by Roy Roberts and given to Farris, who held the gun on both agents. After McNamara had been knocked to the floor, Carl Roberts threw a chair at him and hit him in the head. He also had a pistol which he pointed at McNamara. McNamara received six or seven lacerations on his head and a broken finger. While Roy Roberts was assaulting McNamara, Leach and Farris hit Moriarty with their fists and Leach took his wallet containing $57.00, $55.00 of which was marked money belonging to the government. The officers then ran out the front door and were pursued by three men who went back inside as a car occupied by officers approached.

Agent William M. Clark testified that he was in charge of the investigation and that he and Agent Cutright proceeded to the tavern that night followed by the car occupied by Moriarty and Gentile. Clark drove past the tavern about a block and parked, keeping it under surveillance. He saw Moriarty and Gentile go into the tavern and saw three other men go inside about five minutes later. At about 11:00 p.m. he saw Agents McNamara and Moriarty and informer Gentile run out of the tavern followed by three men. Clark started his car and as he drove towards the tavern the three man went back inside. Clark and Agent Hoerner went to the door, identified themselves and tried to gain admittance, but were unable to do so. In a few minutes several police officers arrived and Hoerner broke a small pane of glass in the front door and shouted inside. Then someone replied, 'Don't shoot, I'll open the door.'

The door was then opened by Roy Roberts and he and the three other defendants were placed under arrest. After they were removed from the premises, it was searched. Agent McNamara's pistol and wallet were found under a rollaway bed in a small storage area at the back of the tavern which was connected to the bar by an open doorway. A Derringer and a .38 revolver were found back of the bar, and Moriarty's weapon was found in an empty beer case in the storage area.

Defendants urge eighteen assignments of error, all of which we have carefully considered but have found to be without merit.

Defendants admit that an assault on the federal officers took place, but contend that they did not know at the time that they were federal officers and that this is the crux of the case. Both officers testified that they did inform the defendants that they were federal officers and therefore there was ample evidence to support a jury finding that the defendants knew of their status at the time of the assault. Furthermore, it has been held that this is not a necessary element of proof. United States v. Wallace, 368 F.2d 537 (4th Cir. 1966)

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, cert. denied, 386 U.S. 976, 87 S.Ct. 1169, 18 L.Ed.2d 136 (1967), and cases therein cited. See also and compare United States v. McGough, 410 F.2d 458 (4th Cir. 1969); Burke v. United States, 400 F.2d 866 (5th Cir. 1968); and Pipes v. United States, 399 F.2d 471 (5th Cir. 1968).

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