US v. Cooley
| Decision Date | 18 February 1992 |
| Docket Number | 91-10087-01 and 91-10088-01.,91-10073-01,No. 91-10066-01,91-10075-01,91-10066-01 |
| Citation | 787 F. Supp. 977 |
| Parties | UNITED STATES of America, Plaintiff, v. Robert E. COOLEY, Gary P. Leber, Charles W. Matson, Ronald L. Taylor, Merrie W. Turner, Defendants. |
| Court | U.S. District Court — District of Kansas |
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Lee Thompson, U.S. Atty., Wichita, Kan., for U.S.
Robert E. Cooley, pro se.
Steve Gradert, Asst. Federal Public Defender, Wichita, Kan., for defendant Leber.
Charles D. Anderson, Federal Public Defender, Wichita, Kan., for defendant Matson.
Craig Shultz, Wichita, Kan., for defendant Taylor.
Gregory Skinner, Asst. Federal Public Defender, Topeka, Kan., for defendant Turner.
On November 26, 1991, the jury returned its verdict finding all five defendants guilty of violating 18 U.S.C. § 1509. Section 1509, a misdemeanor offense, prohibits the willful obstruction or impedance of court orders through the use of threats or by force.
Motions for acquittal or in the alternative for a new trial were subsequently filed by defendants Charles W. Matson, Merrie Turner, and Gary P. Leber on December 4, 1991, and by defendant Ronald L. Taylor on December 6, 1991. On the same day each motion was filed, the court granted accompanying motions requesting extensions of time and allowed until December 20 to file their briefs. On December 18, the court further extended the time for the filing of briefs, requiring defendants to have their briefs on file on or before January 3, 1992. All of the above-named defendants complied with this briefing schedule. Defendant Robert E. Cooley, appearing pro se, filed his motion for acquittal or in the alternative for a new trial on January 3, 1992, and at the same time moved to join in the motions and briefs submitted by the other defendants.
The convictions which the defendants now seek to set aside arise from events occurring on August 20, 1991, at a Wichita abortion clinic located on East Kellogg Street. This clinic was under the protection of a preliminary injunction issued by this court in a separate civil action. Women's Health Care Services, P.A. v. Operation Rescue-National, 773 F.Supp. 258 (D.Kan.1991) (granting injunction). This injunction prohibits, inter alia, any attempt to trespass upon or block the entrance routes to the plaintiff clinics.
During July and August, 1991, Wichita was the target of anti-abortion activists seeking to close abortion clinics by the tactic of "rescue," which involves physically preventing entrance to a clinic by acts of trespass and obstruction. During these months, hundreds and perhaps thousands of persons came to Wichita from across the nation to engage in such activity. Among those persons were the defendants in the present action. Faced with the consistent and frequent violation of the court's orders, the court was compelled to order United States Marshals to the plaintiff clinics to help enforce the injunction.
On August 20, 1991, activists at the East Kellogg clinic departed from the tactics consistently utilized up to that time. Instead of slowly and peacefully approaching the main driveway into the clinic parking lot from across the street and sitting down before the gate, a large number of persons simultaneously charged the driveway gate protected by marshals from the outside. At the same instant, a crowd of perhaps 40 persons, including the defendants, scaled the fences and walls surrounding the parking lot and then charged the marshals protecting the gate by traveling across the interior of the clinic lot.
Those 40 persons who scaled the clinic walls were arrested and subsequently indicted by a grand jury and charged with violating 18 U.S.C. §§ 111 and 1509. Section 111, a felony, provides in part:
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 duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.
Section 1509, a misdemeanor, provides:
Whoever, by threats or force, willfully prevents, obstructs, impedes, or interferes with, or willfully attempts to prevent, obstruct, impede, or interfere with, the due exercise of rights or the performance of duties under any order, judgment, or decree of a court of the United States, shall be fined not more than $1,000 or imprisoned not more than one year, or both.
The other indicted defendants pled guilty prior to trial. The remaining five defendants filed motions to elect. This court found that the two offenses charged were substantively identical and multiplicitous. Section 111 does not require the use of actual force by the defendant; it is sufficient if there is proof that actual force was threatened, and that the defendant acted in a manner as to inspire fear of pain, bodily harm, or death. United States v. Bamberger, 452 F.2d 696, 699 n. 5 (2nd Cir.1971), cert. denied, 405 U.S. 1043, 92 S.Ct. 1326, 31 L.Ed.2d 585 (1972). This force element thus may be satisfied by proof of a threat of immediate harm which would inspire fear in a reasonable person. United States v. Walker, 835 F.2d 983, 987 (2d Cir.1987). See also United States v. Cunningham, 509 F.2d 961 (D.C.Cir.1975).
The force element of § 1509 has never been construed by any court, and the United States contended that § 1509 requires a lesser level of force than § 111. The court was not able to accept this distinction. Both statutes use the same or similar language, making it an offense to interfere with a court order or a government agent by force or by threat of force. Moreover, those cases which have defined the nature of the force or threat which will satisfy the requirements of § 111 have not relied upon any source unique to that statute, but upon the general, common understanding and definition of the term "force." See Bamberger, 452 F.2d at 699 n. 5 (). Thus, the interpretations of the force element of § 111 are equally appropriate for the interpretation of the similar language in § 1509.
The sole substantial distinction between the two statutes is the nature of the object with which the defendant interferes, assaults, or impedes: a designated government officer acting in the performance of his duties (under § 111), or a court order (under § 1509). In the present case, the marshals were in place to enforce the order of the court. The offenses were therefore identical. Accordingly, the court required the United States to elect the charge with which it wished to proceed. The United States elected to proceed with the misdemeanor charge under § 1509 after objecting to the court's ruling. The United States also sought leave for a stay of the case while the ruling was appealed. The request was denied, and the case proceeded to trial.
Prior to resolving the various post-trial motions raised by defendants Leber, Matson, Turner, and Taylor, the court must first address the separate motion advanced by defendant Cooley. Defendant Cooley's motion for acquittal or in the alternative for a new trial was filed on January 3, 1992, 38 days after the verdict of guilty was returned and the jury discharged.
Cooley's motion for new trial is presented without benefit of counsel. At all stages in the present case, the court has undertaken repeatedly to inform defendant Cooley of his rights under the law, including his right to counsel. And, although Cooley himself undertook most of the work in support of his defense at trial, he was nonetheless represented therein by his personal attorney, who was present during the trial in both an advisory and a standby capacity.
Under the Federal Rules of Criminal Procedure, a defendant may submit a motion for acquittal after the jury has returned a verdict of guilty if the motion is made "within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period." Fed. R.Crim.P. 29. A motion for new trial based on newly discovered evidence must be made within two years of judgment. If the motion is premised on any other grounds, the motion must be made "within 7 days after verdict or finding of guilty or such further time as the court may fix during the 7-day period." Fed.R.Crim.P. 33.
The 7-day requirement imposed for a motion for new trial, on any grounds other than newly discovered evidence, is a jurisdictional limit on the district court's ability to grant relief. United States v. Miller, 869 F.2d 1418 (10th Cir.1989). Similarly, the time requirement imposed by Rule 29 for the making of a motion for acquittal is also a jurisdictional limitation on the ability of the trial court to grant the requested relief. Rowlette v. United States, 392 F.2d 437, 439 (10th Cir.1968).
Defendant Cooley did not file his motions within the required 7-day time period. Nor, during that time, did he seek to obtain an extension of time for the filing of a motion. The court did issue orders allowing additional time for the filing of briefs, but each of these orders merely provided an extension for the filing of briefs and not an extension for the filing of any motion pursuant to Fed.R.Crim.P. 29 or 33. Thus, the court's order of December 18, 1991 explicitly stated that "each defendant is now at liberty to supplement his or her pending motions with briefs on or before January 3, 1992." (Case No. 91-10066, Dkt. No. 50 (emphasis added)).
Since Cooley failed to file his motions for post-trial relief within the required time limits, and failed to timely obtain an extension of time for filing, his motions must be denied. The court has no jurisdiction to grant the relief sought in Cooley's motions. Accordingly, the court hereby denies defendant's motion for acquittal or in the alternative for new trial.
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