U.S. v. Danehy, 81-5216

Decision Date29 June 1982
Docket NumberNo. 81-5216,81-5216
Citation680 F.2d 1311
Parties10 Fed. R. Evid. Serv. 1581 UNITED STATES of America, Plaintiff-Appellee, v. Thomas F. DANEHY, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Robert W. Knight, Fed. Public Defender, Mark A. Pizzo, Asst. Fed. Public Defender, Tampa, Fla., for defendant-appellant.

Stephen M. Crawford, Tampa, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before VANCE, KRAVITCH and CLARK, Circuit Judges.

PER CURIAM:

Thomas Danehy appeals his conviction under 18 U.S.C. §§ 2, 111, and 1114 for forcibly resisting, opposing, impeding, and interfering with Coast Guardsmen while they were engaged in the performance of their duties. We reverse his conviction and remand for a new trial below.

The facts of the case are much in dispute. Nevertheless, we shall try to describe generally what took place on the night of March 22, 1980. A distress call came into the Coast Guard Station at Cortez, Florida that night. Two Coast Guard personnel were dispatched in a seventeen-foot, open deck, tri-hulled craft to search for the distressed vessel. They were ordered to search the Intracoastal Waterway between Cortez and Sarasota Bay.

During this time the appellant, his wife, and his neighbors were cruising in the Intracoastal Waterway aboard Danehy's twenty-eight foot sport fisherman, the Not for Fishing. The two vessels met just north of Sarasota Bay. The Coast Guardsmen claim they hailed the appellant's vessel and inquired whether it was overdue. The people aboard Danehy's boat, however, claim no conversation ever took place and that they merely saw a small unlit vessel hovering in the shadows. Both sides are agreed, however, that contact was soon broken off with Danehy going north towards Bradenton and the Coast Guardsmen heading south towards Sarasota.

Later, the Coast Guard craft turned back to the north. The Coast Guardsmen claim that Danehy's boat attempted to ram them. They maneuvered their vessel out of the way, and the appellant began steering his boat in circles, causing the Coast Guard boat's motor to cavitate forcing it to stop dead in the water. The Coast Guardsmen claim that Danehy's vessel headed directly towards them, only turning away when they displayed their weapons.

Danehy has a different version of these events. He claims that an unknown craft running at full speed and without lights closed upon his vessel quickly. Danehy claims he became apprehensive and engaged in evasive maneuvers. He asserts that he tried to flee into a residential development.

Both sides are agreed that Danehy ran aground. The Coast Guardsmen radioed to Cortez for assistance and a Coast Guard cutter and two Manatee County deputies came to their aid. Two more Coast Guardsmen reinforced those already on the seventeen-foot craft. Here, again, the two accounts differ as to what transpired.

The Coast Guardsmen assert that the cutter turned on its blue light, that they identified themselves through a loud hailer, and that they informed Danehy that he should prepare to be boarded. The seventeen-foot craft then proceeded alongside Danehy's boat. Someone, according to this version, aboard Danehy's craft responded with obscenities that they would not be allowed to board. They then boarded the vessel. The Coast Guardsmen claim that while being frisked and handcuffed, Danehy rammed one of their number into the bulkhead twice and began kicking at the Coast Guardsmen. He had to be bodily carried off his vessel.

Danehy and his passengers give a different account of these events. They claim that the Coast Guard boarded without warning or requesting permission and with drawn weapons. Danehy was ordered on deck and after a considerable period arrested. He claims he was handcuffed and forced to kneel. He asserts that when he attempted to stand he was knocked down and that he never attempted to kick anyone. He claims that he passively resisted and remained limp, thereby forcing the Coast Guardsmen to carry him off the vessel.

Both sides agree that all the passengers were then taken off Danehy's boat. They boarded the Coast Guard cutter and arrived at Cortez early in the morning of March 23.

The appellant claims the trial court made three reversible errors. We turn to the first of these, the contention that the district court should have allowed Danehy to call three witnesses to testify to his reputation for truthfulness.

I.

Danehy claims that under United States v. Hewitt, 634 F.2d 277 (5th Cir. 1981), he should have been allowed to introduce evidence of his reputation for truthfulness as his credibility had been attacked. We disagree.

We addressed precisely this issue in United States v. Jackson, 588 F.2d 1046, 1055 (5th Cir. 1979). There, as here, the "attack" on the defendant's credibility consisted of a vigorous cross-examination and the pointing out by the prosecutor of discrepancies between the defendant's testimony and that of other witnesses. This does not call into question the reputation of the defendant for truthfulness. The mere fact that a witness is contradicted by other evidence in a case does not constitute an attack upon his reputation for truth and veracity. Kauz v. United States, 188 F.2d 9 (5th Cir. 1951).

Danehy claims that under Rule 404 of the Federal Rules of Evidence an accused may always bring forth evidence of a pertinent character trait and that his reputation for truth is pertinent in the instant case. We reject this line of reasoning. Since Danehy is trying to offer evidence to bolster himself as a witness rather than to show a trait of character that is pertinent to the crime charged, it is Federal Rule of Evidence 608, not 404, that governs. Rule 608 specifically states that "evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise." Government counsel pointing out inconsistencies in testimony and arguing that the accused's testimony is not credible does not constitute an attack on the accused's reputation for truthfulness within the meaning of Rule 608. Thus, Danehy may not attempt to bolster his testimony by evidence as to his reputation for truthfulness. Therefore, the district court properly denied Danehy's request to call witnesses to testify to his reputation for truthfulness.

II.

Danehy's second contention is that the trial court gave an improper jury instruction on whether it was necessary that Danehy know it was federal officers he was resisting. Tied in with this is Danehy's claim that he was improperly denied an instruction to the jury on the subject of resisting an unlawful arrest.

Danehy's theory of defense was that actions, if any, taken by him prior to the boarding of his vessel were justified because he did not know the identity of his pursuers and therefore he was acting in defense of his person and his property. After boarding, Danehy claims that his resistance, if any, was justified as resisting an illegal arrest. Because of this theory of defense, it was imperative for the defense to have the requested instructions. We turn first to the issue of whether Danehy was entitled to an instruction on his lack of knowledge as to the identity of the Coast Guard personnel.

Danehy requested the following jury instruction:

Thus, to establish the offense of forcibly resisting, opposing, impeding, or interfering with a member of the Coast Guard in the performance of his official duties as charged in the indictment, there are four essential elements which must be proved beyond a reasonable doubt:

First, that the defendant forcibly resisted, opposed, impeded, or interfered with any of the Coast Guard members described in the indictment;

Second, that the Coast Guard members were Federal officials, as described above, then engaged in the performance of their official duties as charged; and

Third, that the defendant did such acts willingly;

Fourth, that the defendant did such acts knowingly.

The trial judge gave the above instruction with the exception of point four. He substituted the following for it:

It is not necessary to show that the defendant knew the people being forcibly resisted, opposed, impeded, or interfered with were, at that time, Federal officers carrying out an official duty; so long as it is established beyond a reasonable doubt that the victims were, in fact, Federal officers acting in the course of their duty and that the defendant willfully resisted, opposed, impeded, or interfered with them.

We hold that the trial judge was in error when he gave this instruction. This instruction is contrary to United States v. Feola, 420 U.S. 671, 679, 95 S.Ct. 1255, 1261, 43 L.Ed.2d 541 (1975); United States v. Ochoa, 526 F.2d 1278, 1281 (5th Cir. 1976); and United States v. Young, 464 F.2d 160, 163 (5th Cir. 1972). Young states that a defendant may not be held absolutely liable for assaulting a government officer when the defendant acts from a mistaken belief that he himself is threatened with an intentional tort by a private citizen. Ochoa goes further and states that even deadly force, in the proper circumstances, could be employed by the defendant if he could reasonably believe that the intruders were a threat to his person. The Supreme Court in Feola stated that "the situation is not one where legitimate conduct becomes unlawful solely because of the identity of the individual or agency affected." 420 U.S. at 685, 95 S.Ct. at 1264. Further, the Court explained that:

We are not to be understood as implying that the defendant's state of knowledge is never a relevant consideration under § 111. The statute does require a criminal intent, and there may well be circumstances in which ignorance of the official status of the person assaulted or resisted negates the very existence of mens rea. For example, where an official fails to identify himself or his...

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