Pipes v. United States

• Decision Date: 01 November 1968
• Docket Number: No. 24965.,24965.
• Parties: James Stanley PIPES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

399 F.2d 471 (1968)

James Stanley PIPES, Appellant, v. UNITED STATES of America, Appellee.

No. 24965.

United States Court of Appeals Fifth Circuit.

July 30, 1968.

Rehearing Denied November 1, 1968.

Neil Heimanson, Atlanta, Ga., for appellant.

Theodore E. Smith, Asst. U. S. Atty., Atlanta, Ga., for appellee.

Before JOHN R. BROWN, Chief Judge, and AINSWORTH and GODBOLD, Circuit Judges.

JOHN R. BROWN, Chief Judge:

The appellant was convicted on an indictment charging he "willfully did forcibly assault * * * an officer and employee of the Bureau of Prisons of the Department of Justice, knowing him to be such officer, while the said officer and employee was engaged in the performance of his official duties, in violation of 18 U.S.C. § 111, as limited by 18 U.S.C. § 1114."¹

Appellant was an inmate of a United States penitentiary, assigned to a laundry detail, and was found guilty of assaulting a supervisor of the laundry who was employed by the Bureau of Prisons. The laundry supervisor was within the persons covered by 18 U.S.C. § 1114.

Appellant contends that he was entitled to a directed judgment of acquittal at the close of the Government's case and that the evidence was insufficient to sustain the conviction. He contends that there was no evidence introduced by the Government as to whether he had knowledge that the person assaulted was a federal officer and contends that the Government was required to show that he had knowledge that the person whom he acted against was a federal officer. He cites three Fifth Circuit cases in support of his contention that scienter is a necessary element to the offense, namely, Hall v. United States, 5 Cir. 1956, 235 F.2d 248; Carter v. United States, 5 Cir.1956, 231 F.2d 232; and Hargett v. United States, 5 Cir.1950, 183 F.2d 859. All of these cases involved 18 U.S.C. § 111 offenses. However, this circuit in 1960 decided Bennett v. United States, 5 Cir.1960, 285 F.2d 567, in which we held, without mentioning our prior contrary holdings in Hall, Carter and Hargett, supra, that an indictment under Section 111 was not insufficient because it failed to include the element of scienter. Judge Tuttle, writing the opinion for the Court, said (285 F.2d at 570, 571):

"The statute making criminal such acts as those of which he was convicted does not require that the doer of the act have knowledge that the person who is assaulted, resisted, opposed, impeded, intimidated, or interfered with is a federal officer. It merely requires that the act condemned be done in order to establish a violation of the statute, and the provisions of the section apply to `whoever\' does the act, whether he does it with knowledge of the character of the person whom he acts against and whatever his intent in so acting."

The Bennett opinion cited with approval McNabb v. United States, 6 Cir. 1941, 123 F.2d 848, in which appellant complained that the jury should have been instructed that the defendants could not be convicted unless they knew or had reasonable grounds to believe that a murdered man was a Government officer. (The case was concerned with a Section 1114 violation.) The McNabb court said that "Refutation of this specious argument is found in the plain language of the statute: * * *" and "To be amenable to punishment under this section of the Criminal Code of the United States, the killer need not know that he is killing an officer, agent or employee of the United States." The Court said: "Jurisdiction in the federal courts * * * stems from the actuality that the person killed is a designated federal officer, engaged in the performance of his official duties. In the language of the statute * * *, no exemption is expressly made of a killer who does not know that he is killing a federal officer of a class covered by the statute. Exemption may not be implied. The words and the intent of the statute are clear beyond the necessity for any canonical construction. The statute says, `whoever shall kill,' not `whoever shall kill with knowledge that he is killing' a federal officer of an enumerated class, shall be punished." (123 F.2d at 854, 855.)

Though there is authority to the contrary, we believe that our holding in Bennett is the better rule and expressly reaffirm and adhere to the principle stated therein that scienter is not required either in the indictment or in the proof to sustain a Section 111 conviction.

The Fourth Circuit is of the same view, as we note in its recent decision in United States v. Wallace, 4 Cir.1966, 368 F.2d 537, in which the Court observed:

"Title 18, § 111 prescribes a penalty for a forcible assault upon or interference with a federal official as defined in § 1114 while the official is `engaged in or on account of the performance of his official duties.\' The statute contains no words which can reasonably be said to require that the actor know at the time that the victim of the assault, or the person with whom he interferes is a federal officer engaged in his official duty."

Wallace cited with approval our holding in Bennett, also the Sixth Circuit's holding in McNabb, and the Second Circuit's holding in United States v. Lombardozzi, 2 Cir.1964, 335 F.2d 414, 10 A.L.R.3d 826.

In United States v. Lombardozzi, supra, the Second Circuit reviewed the cases in the various circuits on this subject, including our own holding in Bennett. It held that scienter was not necessary in a Section 111 case, and said:

"The courts should not by judicial legislation change the statute by adding, in effect, the words `with knowledge that such person is a federal officer.\' The reasoning in McNabb and Bennett is far more persuasive as to the proper construction to be placed upon section 111 than those cases which write the element of scienter into a statute which does not contain this requirement." (335 F.2d at 416.)

To the same effect, see the Second Circuit's later decision in United States v. Montanaro, 2 Cir.1966, 362 F.2d 527. See also United States v. Burgos, 2 Cir. 1964, 328 F.2d 109. We believe that the logic of Bennett, Wallace and Lombardozzi is compelling, for we are not authorized to rewrite a criminal statute of Congress and interline language therein which would clearly change its intent and meaning.

Here the proof was also adequate that the appellant knew that the assaulted person was a federal officer (or employee) as charged in the indictment.

Affirmed.

GODBOLD, Circuit Judge (concurring in part, dissenting in part):

I concur in the result. The indictment charged that appellant knew the laundry supervisor was a federal officer or employee. There was sufficient evidence that appellant had such knowledge, and the last paragraph of the majority opinion so states. Nothing more needed to be said.

I must record my dissent from the remainder of the opinion. It has long been the settled law of this circuit, rendered in head-on decisions, that in a prosecution under 18 U.S.C.A. § 111 it must be proved that the defendant had knowledge that the victim of his wrongful conduct was a federal officer. The unnecessary discussion by the majority seeks to raise to the status of new law in this circuit a dictum in Bennett v. United States, 285 F.2d 567 (5th Cir.1960), cert. denied, 366 U.S. 911, 81 S.Ct. 1087, 6 L.Ed.2d 236 (1961), a case in which the necessity of proof of knowledge was not an issue and in which there was no mention of the previous decisions of this court holding there must be proof of knowledge.¹

The rule of this circuit requiring proof of knowledge has been stated and restated in express holdings of unmistakable clarity, precision and emphasis. In Hargett v. United States, 183 F.2d 859 (5th Cir.1950), a § 111 case, the government squarely met the issue of knowledge by the defendants that the victims of an assault were federal officers and insisted knowledge was not necessary to convict. 183 F.2d at 864. The court (Holmes, Waller and Borah) followed the decision of the Supreme Court in Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed 419 (1893), which held scienter necessary in a prosecution for obstruction of officers of the United States, brought under what was then Rev.Stat. § 5399.² The court considered, discussed and declined to follow McNabb v. United States, 123 F.2d 848 (6th Cir.1941), rev'd on other grounds, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). The earlier decisions of this circuit which were relied on are discussed in the margin.³

The Hargett court also considered several decisions of other circuits, including the early case of United States v. Taylor, 57 F. 391 (E.D.Va.1893), a sufficiency of indictment case (unlawfully interfering with federal election officials), in which the court said:

To assault an officer of the United States while happening to be engaged in performing some duty enjoined upon him by federal statute is only a common-law offense; and it becomes a statutory offense only when the assailant knows that the assailed is an officer of the United States, and makes the assault for the purpose of obstructing the officer in the discharge of duty imposed by laws of the United States. In such cases the scienter is an essential ingredient of the offense.

The next chapter is Carter v. United States, 231 F.2d 232 (5th Cir.), cert. denied, 351 U.S. 984, 76 S.Ct. 1052, 100 L. Ed. 1498 (1956). This is another § 111 case. In an opinion by Judge Brown (Borah, Tuttle and Brown), the message is graphic. While defendant's car rocketed through the streets at 60 m.p.h. an internal revenue agent clung precariously to the outside, one foot in a slightly opened door, holding on as best he could, insisting to the defendant driver he was a federal officer while the driver repeated, "show me your badge," until the car slowed and the agent could reach his pants pocket and take out and display his badge. The defendants contended the officer was in civilian clothes and there was no reason to know he was a government officer, and that...