Portnoy v. United States

Decision Date01 May 1963
Docket NumberNo. 6067.,6067.
PartiesHarry PORTNOY, Defendant, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — First Circuit

Manuel Katz, Boston, Mass., with whom Paul T. Smith and Raymond J. Dowd, Boston, Mass., were on brief, for appellant.

William F. Looney, Jr., Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., and Paul J. Redmond, Asst. U. S. Atty., were on brief, for appellee.

Before HARTIGAN and ALDRICH, Circuit Judges, and GIGNOUX, District Judge.

HARTIGAN, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the District of Massachusetts following defendant's conviction by a jury on a one count indictment charging him with a violation of Title 18 U.S.C. § 111.

On May 11, 1962 a grand jury returned an indictment alleging that defendant "on or about May 9, 1962 at a parking lot located on St. Botolph Street in Boston, Massachusetts, did forcibly assault, resist, oppose, impede, intimidate and interfere with United States Deputy Marshal William H. Baldwin, a person designated in Section 1114 of Title 18 of the United States Code while said William H. Baldwin was engaged in the performance of his official duties and on account of the performance of his official duties, all in violation of Title 18, United States Code, Section 111."

Defendant pleaded not guilty and seasonably moved to dismiss the indictment because of a failure to allege that defendant was aware, at the time of the alleged offense, that Baldwin (1) "was an officer of the United States" and (2) "was engaged in the performance of his official duties." This motion was denied.

The case proceeded to trial and following the close of the prosecution's opening statement — wherein the prosecutor alluded to no prospective proof that the defendant knew the official status of Baldwin — defendant moved for a judgment of acquittal. The trial judge denied this motion also.

At the trial the Government offered testimony that the defendant had virtually run over — with his automobile — a Deputy United States Marshal who had tried to serve him with a subpoena. There was evidence from which a jury could properly have concluded that the defendant had been made aware of the official status of the Deputy Marshal and that he had deliberately plunged his car forward — heedless of the possibility of bodily harm to the Marshal — in order to avert being served.

In this court, defendant raises three contentions. Initially he argues that the indictment was fatally defective because of the failure to allege that defendant knew that Baldwin was a government officer engaged in the performance of his official duties. Second, it is argued that the trial judge erred in denying defendant's motion for judgment of acquittal following the Government's opening statement because of the prosecutor's failure to state that the Government would prove that Baldwin was a Government officer engaged in the performance of his official duties. Finally, defendant urges that the evidence is insufficient to sustain a conviction.

In our view there is no question that there was abundant evidence from which the jury properly could have found the defendant guilty as charged and, consequently, we pass quickly over the defendant's argument as to the sufficiency of the evidence.

The major issue posed by defendant is where an indictment alleging an assault on a federal officer under 18 U.S.C. § 111, is deficient if it does not allege that the defendant was aware that his victim was a federal officer. The Government argues that scienter on the part of the defendant, as to the official character of the victim, is not an essential element of this type of offense. It argues that the gist of the offense resides in the fact that the defendant has engaged in a certain course of illegal conduct — malum in se — and the additional fact that the victim happens to be a federal officer is relevant only for jurisdictional purposes. In support of this argument, the Government relies largely on the recent decision of the United States Court of Appeals for the Fifth Circuit in Bennett v. United States, 285 F.2d 567, 570 (1960), which squarely sustains the position for which the Government here contends.

The defendant, on the other hand, while recognizing the fact that Bennett is highly apposite, attempts to discredit the result on the basis that the holding is out of consonance with a significant line of cases starting with Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419 (1893), holding that knowledge of the official character of the officer is an essential element of the offense charged, and an indictment which...

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  • U.S. v. MacDonald & Watson Waste Oil Co.
    • United States
    • U.S. Court of Appeals — First Circuit
    • 2 de outubro de 1990
    ...that the indictment was constitutionally flawed because it failed to allege an essential element of the offense. See Portnoy v. United States, 316 F.2d 486, 488 (1st Cir.), cert. denied, 375 U.S. 815, 84 S.Ct. 48, 11 L.Ed.2d 50 (1963) ("It is a cardinal principle of our criminal law that an......
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    • United States
    • U.S. Court of Appeals — First Circuit
    • 20 de abril de 1970
    ...of a federally insured bank, the use of force or violence, or intimidation, in the presence of some person. See also Portnoy v. United States, 316 F.2d 486 (1st Cir. 1963), cert. denied, 375 U.S. 815, 84 S.Ct. 48, 11 L.Ed. 2d 50 (1963), in which we upheld an indictment where the allegation ......
  • Dukette v. Perrin
    • United States
    • U.S. District Court — District of New Hampshire
    • 9 de junho de 1983
    ...defense and to plead judgment of acquittal or conviction as a plea to a subsequent prosecution for the same offense." Portnoy v. United States, 316 F.2d 486, 488 (1st Cir.), cert. denied, 375 U.S. 815, 84 S.Ct. 48, 11 L.Ed.2d 50 Id.3 Under the foregoing principles, the indictment was plainl......
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    • U.S. Court of Appeals — First Circuit
    • 11 de setembro de 1990
    ...judgment of acquittal or conviction as a plea to a subsequent prosecution for the same offense." Id. at 242, quoting Portnoy v. United States, 316 F.2d 486, 488 (1st Cir.), cert. denied, 375 U.S. 815 The essence of the crime of conspiracy is the agreement to act in concert to commit one or ......
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