Foster v. United States, 18898.
| Decision Date | 02 January 1962 |
| Docket Number | No. 18898.,18898. |
| Citation | 296 F.2d 65 |
| Parties | William A. FOSTER, Jr., Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Walter G. Arnold, Jacksonville, Fla., for appellant.
Donald C. Lehman, Asst. U. S. Atty., Jacksonville, Fla., Edward F. Boardman, U. S. Atty., Southern Dist. of Florida, Miami, Fla., for appellee.
Before TUTTLE, Chief Judge, and JONES and WISDOM, Circuit Judges.
This appeal attacks the conviction and sentence of appellant for violation of Title 18 U.S.C.A. § 111, dealing with forcibly assaulting, resisting, opposing, impeding, intimidating or interfering with United States officials while engaged in the performance of their official duties. The principal ground of the appeal is the contention that the government failed in its effort to prove that Special Agents William Johnson and Thomas J. Walsh, of the Federal Bureau of Investigation, were, when resisted and impeded and intimidated, engaged in the performance of their official duties. The basis of this attack is the allegation by the appellant that when he did the acts complained of towards the agents they were illegally on his premises and were thus not, in legal contemplation, engaged in the performance of their official duty.
On the evidence introduced on the trial of the appellant, the jury was authorized to find that the following occurred on the night of February 10, 1959, near Jacksonville, Florida: The Special Agents, at 2:30 P.M., went to 8265 Hogan Road, Duval County, Florida, for the purpose of questioning Foster in connection with an official investigation by the Federal Bureau of Investigation. The agents parked their automobile facing outward on a roadway running alongside the house, but some distance from it. The automobile had Florida license plates and did not have any United States government identification. The two agents walked up on the front steps of the property of Foster's parents for the purpose of questioning him. Although a man of thirty-five to forty-five years of age he stayed at his parents' home when in Jacksonville. His normal employment was as an engineer on board dredges and ships. The two agents were in business suits and ties and they were unarmed. They walked up to the front screen door to the porch of the house and stood on the steps while they rang the doorbell and knocked. The appellant came to the center of the porch and Agent Johnson asked him, "Are you Bill Foster?" Without answering the question, appellant answered, "Who the hell are you?" Johnson then gave his name and stated that they were Special Agents of the Federal Bureau of Investigation. Thereupon the appellant, with considerable profanity, ordered the agents to "get the hell from the property." Mr. Johnson testified that he then stated to Foster that they only wanted to talk to him a couple of minutes. Whereupon appellant said, "Well, it's not going to take that long for me to do what I am going to do," and "I'll teach you to come around and bother me." The appellant immediately went to the living room from the porch and reached for a rifle and "racked the action of the rifle," pointing it in the direction of Johnson and Walsh. One agent testified that it looked as though it was pointed directly at his head and the other testified that he was fearful for his life resulting from this threat. Walsh told appellant that they were with the F. B. I. and on official business and asked the appellant to put down the gun. At this point Foster's father, William A. Foster, Sr., came to the porch, shouted to the son to put down the gun and asked the agents what their business was. Whereupon they told him who they were and that they wanted to talk to his son. The appellant then put down the rifle and came to the door, telling the agents to get off the porch or he would kick or throw them off. Walsh told the appellant not to come through the door or "someone was liable to get hurt." The appellant picked up the rifle the second time and ordered the agents off the property. Thereupon they turned their backs on the appellant and walked from the house to the automobile and drove off. The agents had no opportunity to show their credentials without, as they said, fearing that appellant would react violently to their reaching to their inside pockets. The entire occurrence took place within two or three minutes.
The same afternoon a federal warrant was issued for the arrest of appellant for violating Section 111 of Title 18, U.S. C.A. Johnson and Walsh, together with a number of other agents surrounded the house at 8:30 in the evening, arrested Foster and searched the house. The agents showed the warrant and their credentials at the time they arrested him. He was handcuffed, and in spite of a vigorous struggle, the agents carried him from the property and placed him in an automobile and drove him to a county jail. The indictment did not charge any violation of the federal statute based on appellant's belligerent actions at the time of or following his arrest. The only violation charged was the appellant's actions during the afternoon appearance of agents Johnson and Walsh.
Appellant's contention that the agents could not, in legal contemplation, be engaging in the performance of their official duties at the time they were threatened by Foster, is based largely upon matters that occurred in October, 1958. At that time two other special agents went to the same address, identified themselves and asked him some questions as a part of their investigation of the bombing of a Jewish synagogue in Atlanta on October 12, 1958. On this occasion Foster told the agents that he did not care to be interviewed, that he had nothing to tell them. Again, on November 6th the...
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