Taylor v. United States

• Decision Date: 09 July 1964
• Docket Number: 7599.,No. 7598,7598
• Citation: 334 F.2d 386
• Parties: Roy John TAYLOR, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

334 F.2d 386 (1964)

Roy John TAYLOR, Appellant, v. UNITED STATES of America, Appellee.

Nos. 7598, 7599.

United States Court of Appeals Tenth Circuit.

July 9, 1964.

Sid White, Oklahoma City, Okl., for appellant.

John W. Raley, Jr., Asst. U. S. Atty. (B. Andrew Potter, U. S. Atty., on the brief), for appellee.

Before PHILLIPS, BREITENSTEIN and HILL, Circuit Judges.

HILL, Circuit Judge.

Appellant was tried and convicted, in non-jury trials, upon each count of an indictment charging him with two separate violations of 18 U.S.C.A. § 111, and upon two counts of a second indictment charging him with violations of 26 U.S.C.A. §§ 5604(a) and 5686(a). He appeals asserting three grounds for a reversal: (1) The first indictment is legally insufficient to charge an offense under § 111; (2) certain evidence admitted at the trial on the second indictment was obtained by an illegal search and seizure and should have been excluded; and (3) the evidence is insufficient to support the judgments of conviction.

The facts are that some time prior to March 13, 1963, a "reliable" source informed an Internal Revenue Agent that Taylor, who resided in Oklahoma City, was engaged in the manufacture and distribution of non-taxpaid distilled spirits and that he had been making deliveries of it in the early morning hours in a white 1962 Chevrolet Impala automobile. The agent determined that this car belonged to appellant's wife and bore license tag YH 3603. On the night of March 13, the Revenue Agents were in the vicinity of Taylor's residence and, while there, they detected the odor of fermenting mash but were unable to determine if it came from any of the buildings located on appellant's premises. Nevertheless, in the early morning hours on March 15, two of the federal agents stationed themselves near Taylor's residence in a position so that they could observe any activity there. Two more agents, together with local police, were stationed in a government car at the intersection of 108th Street and Midwest Boulevard, just north of Taylor's residence. Other federal agents and local police were in another government car stationed on further north of the first government car. The three parties were able to communicate with each other by means of radio.

At approximately 3:35 a. m., Taylor was observed leaving his residence in the white 1962 Chevrolet. He turned onto Midwest Boulevard and proceeded north toward the two government cars. The agents in the two cars were advised by radio that Taylor had left the premises and the car being driven by Agent Ohlsen, with Agent Carey as passenger, commenced moving north on Midwest Boulevard ahead of Taylor. As he passed the intersection where it was stationed, the second government car proceeded onto the Boulevard immediately behind him. After going north in this fashion for about 300 yards and according to a prearranged signal via radio, the car behind Taylor attempted to stop him by turning on its red lights and siren. At this same time, the car in front pulled into the center of the road and came to a stop, causing the appellant and the other government car to come to a stop also. The agents got out of their cars and shouted that they were "Federal officers". Ohlsen testified: "* * * as I got out of my car and started back towards the car that stopped behind me, this car pulled out and went around to the left side of my car. I waved for him to stop. At that time, he whipped toward me. I placed my hands on the front of the car and vaulted out of the road and he went on past me and proceeded down the road at a high rate of speed." Carey testified: "* * * the defendant's vehicle, the 1962 Chevrolet, pulled around the left side of our car and by that time I had run around to the back of the Government car and was a little bit to the left of the Government car parked near the center of the road. The 1962 Chevrolet came on by our car and I observed Investigator Ohlsen with his hands push himself or vault away from the right front fender of the Chevrolet, and the Chevrolet continued on at a fast acceleration. And, I jumped out of the way and the car continued on north." He further testified that the Chevrolet swerved over toward him as it came around the government car and came within two or three feet of striking him. This testimony by the two agents was corroborated by other agents.

Taylor then proceeded north at a high rate of speed and both government cars pursued him. The chase lasted for about 40 minutes and continued over country roads at speeds in excess of 100 m. p. h. Eventually Taylor lost control of his car and ran into the ditch. He was placed under arrest and an immediate search of the car revealed 42 gallons of "moonshine" whiskey in the trunk. The whiskey was in half-gallon fruit jars, none of which bore federal revenue stamps. It should be noted here that the record is not clear as to whether Taylor was arrested for violation of the revenue laws or for assaulting the federal agents.

Appellant's argument as to the insufficiency of the first indictment is that it fails to allege an essential element of the offense, i. e., scienter or that he knew at the time the acts in question were committed that the persons alleged to have been assaulted were federal agents. In response to this argument, the Government contends that scienter is not an essential element of the offense. However, we need not determine that issue in this case.¹ Following the words of the statute,² it is alleged in Count I of the indictment that on or about March 15, 1963, the appellant "* * * did forcibly assault, resist, oppose, impede, intimidate and interfere with Melvin W. Ohlsen, an officer of the United States Internal Revenue Service, while said officer was engaged in and on account of the performance of his official duties, in violation of Section 111, Title 18, U.S.C." Count II, pertaining to the alleged assault upon Agent Carey, contains identical allegations.

It has been held that an indictment under this statute charging the defendant with assaulting a deputy marshal while the latter was engaged in the performance of his official duties and "on account of" the performance of his official duties sufficiently alleged that the defendant was aware of the fact, and knew, that the deputy marshal was a federal officer at the time the assault was committed.³ The court stated that "* * * an allegation averring that a defendant embarked upon a given course of conduct `on account of' — or for the reason that — his victim was performing official duties must necessarily imply the defendant's knowledge or awareness of the cloak of officiality with which his victim was garbed at the critical moment. * * *"⁴ Thus, the indictment in this case must be construed as alleging that appellant knew...