U.S. v. Street

• Decision Date: 24 November 1995
• Docket Number: No. 94-3972,94-3972
• Citation: 66 F.3d 969
• Parties: 43 Fed. R. Evid. Serv. 119 UNITED STATES of America, Appellee, v. William E. "Jack" STREET, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 969

66 F.3d 969

43 Fed. R. Evid. Serv. 119

UNITED STATES of America, Appellee, v. William E. "Jack" STREET, Appellant.

No. 94-3972.

United States Court of Appeals Eighth Circuit.

Submitted April 11, 1994.

Decided Oct. 4, 1995.

Rehearing Denied Nov. 24, 1995.

Robert Beaird, Kansas City, Missouri, argued (Gary C. Haggerty, Kansas City, Missouri, on the brief), for appellant.

Michael A. Price, Assistant U.S. Attorney, St. Louis, MO, argued, for appellee.

Before WOLLMAN, Circuit Judge, FRIEDMAN ^*, Senior Circuit Judge, and LOKEN, Circuit Judge.

FRIEDMAN, Senior Circuit Judge.

The appellant Street challenges his jury conviction under 18 U.S.C. Sec. 111(a) (1988) for forcibly assaulting, resisting, opposing, impeding, intimidating or interfering with park rangers while they were engaged in or on account of the performance of their official duties. He contends that the indictment was duplicitous and multiplicitous, that the district court ^** improperly admitted certain evidence, and that the evidence was insufficient to support the conviction. He also contends that the district court erred in applying the United States Sentencing Guidelines, and that the double jeopardy clause barred the district court from considering conduct for which he had been prosecuted in state court in calculating the sentence. We reject all of these contentions and affirm the conviction and sentence.

I.

Viewing the evidence most favorably to the government and drawing all reasonable inferences therefrom, see United States v. Johnson, 18 F.3d 641, 645 (8th Cir.1994), the jury could have found the following facts (most of which are not disputed):

At Wappapello Lake in Missouri, which is open to the public for recreational purposes, Army Corps of Engineers park rangers manage the area's natural, cultural and developed resources, and ensure the safety of visitors. The rangers do not enforce state game laws, since they are not authorized to detain or arrest. Pursuant to cooperation agreements between the Corps and law enforcement agencies such as the U.S. Fish and Wildlife Service and the Missouri Department of Conservation, rangers work with other agencies to aid the enforcement of game laws. During deer hunting season rangers are required, as part of their official duties, to perform "deer patrol," which entails observing possible game law violations, noting the details, and informing state conservation agents.

On November 19, 1993, Rangers Chris Coe and Tim Bischoff were working in uniform; their work included deer patrol. While driving they saw a group of people who appeared to be hunting deer using a dog, which violates Missouri law. By telephone they informed Missouri Conservation Agent Brian Ford, who agreed to meet them at Parking Area 55, which is federal property.

In the parking lot, they saw a truck with a dog and a dog box. Agent Ford checked on the license plate and found that it belonged to a man named Graham. The dog tag showed that the dog belonged to his son. Ford asked the rangers to collect information from driver's licenses and deer tags of persons who entered the lot, while he left to look for the Grahams.

Shortly thereafter Jason Street, the son of the appellant Street, drove into the parking lot. The rangers asked him for his driver's license and deer tag. Jason Street showed the rangers those items.

A truck driven by the appellant Street pulled into the parking lot. Street slammed on his brakes, yelling, "Are those fucking Corps rangers giving you a hard time and ganging up on you?" His son responded: "No, they just asked for my deer tag and driver's license." Street got out of his car and approached the rangers, swinging his fists and shouting obscenities.

Street walked up to Ranger Coe, who was standing at the open door of his truck, and proceeded to berate and to threaten him. Street stood face to face with Coe for about fifteen minutes, trapping him between the open door and the inside of the truck and threatening him with bodily harm. Street said: "You Corps Rangers have no authority here, this is our property, not yours." "I'm going to knock your fucking head in." "I have a hard on for the Corps of Engineers, I'm out to get you guys." "I'm sick and tired of all the things that you have done in the past." Street stepped back, and then lunged back at Ranger Coe, warning "Don't you ever look at me like that again you little fucker."

Street then inquired who requested his son's deer tag. Ranger Bischoff stated, "I asked your son for his deer tag."

Street left Ranger Coe and approached Ranger Bischoff. Street stood face to face with Bischoff and berated and threatened him as well. Street said "If you do not leave the parking lot now, I'm going to knock your fucking head in." Bischoff described Street as "hopping mad," jumping up and down with his arms raised and moving around a lot. He stuck his finger within an inch of Bischoff's eye and his fist within three inches of Bischoff's face.

Ranger Coe moved to follow Street over to Bischoff, but was confronted by Jason Street. Ranger Coe pointed at Jason Street, saying "I need to please have you go back and stand by the truck."

Street then said "Don't you ever point your finger at my son again." He turned and ordered Jason Street to "beat the shit out of that park ranger," referring to Coe. "I'll take this park ranger," meaning Bischoff. Jason Street ripped off his vest, threw it on the ground, and assumed a fighting stance. Street continued to yell obscenities, warning the rangers to leave the parking lot now "or we're going to beat the shit out of you."

Bischoff then told Street that he and Coe would leave. They got in their truck and started backing out of the lot. Street followed the truck on foot, continuing to shout threats and obscenities.

Before the rangers' truck had left the parking lot, Missouri State Conservation Agent Ford arrived, in response to a radio request for immediate assistance Bischoff made while Street was confronting Coe. Ford got out of his truck while Street was still shouting obscenities at the rangers and demanding that they leave the lot.

Ford asked Street what the problem was. Street responded by asking, "Who gave these rangers the authority to ask for my son's driver's license and deer tag?" Agent Ford replied that he had. Street said, "That is your job, not theirs." "I'm going to knock your fucking head in now." Ford said. "You're not going to kick anybody's ass."

Street again walked toward Coe, who had left his truck. When he was about eight feet away, Ford stepped between them. Street said "I'm going to kick all of your asses." Ford drew a can of mace, pointed it at Street, and backed him up against the front of his truck. Street turned to his son and said, "If he sprays me with that mace, I want you to shoot him." Street told his son to get his deer rifle out of the truck. Jason Street immediately did so and returned, placing the gun in a position from which he could immediately pull it up to shoot. Agent Ford drew his weapon. Street ordered his son three more times to shoot Ford if he maced him, saying the third time, "If he sprays me with that mace, I want you to shoot him and kill him."

After a time, Agent Ford persuaded Jason Street to return his weapon to the truck. He asked the rangers to get back in their truck and to leave the lot, which they did. Even after Jason Street returned the gun to the car, Street continued to scream at Bischoff and Coe.

Street was indicted and convicted for two violations of 18 U.S.C. Sec. 111 (1988), which applies to:

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 official duties....

The first count of the indictment applied to Coe, and the second to Bischoff. The court sentenced Street to 46 months imprisonment and a $10,000 fine.

II.

Street contends that the district court should have granted his motion to dismiss either the entire indictment as duplicitous or one count as multiplicitous. The district court correctly refused to dismiss on those grounds.

A. " 'Duplicity' is the joining in a single count of two or more distinct and separate offenses." Gerberding v. United States, 471 F.2d 55, 59 (8th Cir.1973). "The principal vice of a duplicitous indictment is that the jury may convict a defendant without unanimous agreement on the defendant's guilt with respect to a particular offense." United States v. Karam, 37 F.3d 1280, 1286 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995).

The indictment charged that Street "knowingly did forcefully assault, resist, oppose, impede, intimidate and interfere with" Ranger Coe (Count I) and Ranger Bischoff (Count II), in violation of 18 U.S.C. Sec. 111(a)(1). Street contends that each of the six acts listed in 18 U.S.C. Sec. 111(a)(1)--assaulting, resisting, opposing, impeding, intimidating, or interfering with an officer--is a separate and distinct offense, and that this combination of separate offenses in a single count made the indictment duplicitous. He asserts that this combination of offenses allowed the jury to convict him without necessarily unanimously agreeing that he committed any one of the acts listed.

"It is important to distinguish, however, a statute creating several offenses from one ... which enumerates several ways of committing the same offense. Where ... the statute specifies two or more ways in which one offense may be committed, all may be alleged in the conjunctive in one count of the indictment, and proof of any one of the methods will sustain a conviction." Gerberding, 471 F.2d at 59.

Section 111(a)(1) defines a single crime, not multiple offenses. The offense is intimidating or threatening by specified acts federal officials engaged in the performance of official duties. The statute lists all of the acts of violation in...