U.S. V. Gaither

• Decision Date: 05 February 2008
• Docket Number: Criminal No. 08-03 J.
• Parties: UNITED STATES of America v. Sheila Sharese GAITHER, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

533 F.Supp.2d 540

UNITED STATES of America v. Sheila Sharese GAITHER, Defendant.

Criminal No. 08-03 J.

United States District Court, W.D. Pennsylvania.

February 5, 2008.

Marketa Sims, Federal Public Defender's Office, Pittsburgh, PA, for Sheila Sharese Gaither,

John J. Valkovci, Jr., United States Attorney's Office, for United States of America.

MEMORANDUM OPINION

KIM R. GIBSON, District Judge.

SYNOPSIS

Defendant was charged with violation of 18 U.S.C. § 1513(b) for threatening a government informant, a felony. She sought, pursuant to a plea agreement, to plead guilty instead to 18 U.S.C. § 111(a), under the facts of her case a misdemeanor. Before accepting her plea, the Court had to determine (1) whether a government informant was a protected person under § 111 and, if so, (2) whether in the course of her threats Defendant had satisfied the elements of common law assault by creating in the informant a reasonable apprehension of immediate bodily harm. For the reasons given below, the Court was satisfied as, to both conditions and accepted Defendant's plea to the lesser offense.

FACTS¹

Sometime, apparently in 2006, an unidentified individual approached agents of the FBI and offered his services as a government informant. He was ultimately "signed up" as an official informant, to assist federal agents in the investigation of narcotics crimes. The informant made a controlled purchase of illegal drugs from George Montgomery, the then-boyfriend of Defendant. As a result of that controlled purchase, federal agents executed a "buy and bust" on Mr. Montgomery. Defendant was at least intermittently present on these occasions.

On September 20, 2006, Mr. Montgomery was in an office with federal agents, and was allowed to phone Defendant using one of the agents' cell phones. The agent was able to hear both sides of the conversation. The call lasted approximately ten minutes, and much of it was devoted to an attempt to figure out who had informed on Mr. Montgomery. Eventually, Defendant and Mr. Montgomery correctly identified the informant.

At that point Defendant became enraged, and the agent could hear her "screaming" on the phone. A few minutes after the conversation between Defendant and Mr. Montgomery ended, the informant called the agents. He appeared to be very frightened. He told the agents that Defendant, who lived in the informant's neighborhood, had knocked on the door of his residence and when he answered had accused him in a threatening manner of informing on Mr. Montgomery. The informant, who was smaller than Defendant, had denied the accusation, fearing that if he had not he would have been attacked immediately.

Defendant, who was drunk at the time, told the informant that if she found out that he had informed on Mr. Montgomery she would "f* * * him up," and that if he did not give her $3,000 to hire a lawyer for Mr. Montgomery she would also "f* * * him up." She then returned to her home, where she was arrested. After being read her Miranda rights, she confessed to having threatened the informant in the terms described above. The informant was sufficiently distressed by the incident that he moved to another city to avoid further contact with Defendant.

On November 15, 2006, Defendant was indicted at 3:06-cr-34 for threatening to cause bodily injury to an unnamed federal law enforcement informant, in violation of 18 U.S.C. § 1513(b)(2). Document No. 4, 3:06-cr-34. That is a Class C felony for which the Sentencing Guidelines recommend a range of imprisonment of from 41 to 51 months for a person with no criminal history points, and for which the maximum statutory sentence is ten years. 18 U.S.C. §§ 1513(b), 3559(a)(3); USSG § 2J1.2(a), (b)(1)(B), Ch. 5 Pt. A. Pursuant to a plea agreement, Defendant subsequently sought to plead guilty to an information at 3:08-cr-03 accusing her of forcibly assaulting, impeding, intimidating and interfering with a person designated by 18 U.S.C. § 1114, in violation of 18 U.S.C. § 111(a)(1). Under the facts of this case that offense is a class A misdemeanor.² 18 U.S.C. §§ 111(a), 3559(a)(6), Document No. 1, 3:08-cr-03.

DISCUSSION

Such a plea was obviously to Defendant's advantage, and on the facts of the case provided for a penalty more in keeping with the magnitude of Defendant's offense than the roughly four years of incarceration recommended by the Sentencing Guidelines for violation of 42 U.S.C. §§ 1513(b). However, before accepting any guilty plea the Court must determine that the plea has a factual basis. Fed.R.Crim.P. 11(b)(3). This does not require proof beyond a reasonable doubt; the Court merely needs to "find sufficient evidence in the record as a whole to justify a conclusion of guilt." United States a Lessner, 498 F.3d. 185, 197 (3d Cir.2007) (citing United States v. Cefaratti, 221 F.3d 502, 509-10 (3d Cir.2000)). Given the elements of an offense under 18 U.S.C. § 111(a), it was not immediately obvious to the Court that there was sufficient evidence in the instant" case, or in face that the informant was within the class of persons protected by the statute.

For the reasons given below, the. Court ultimately did accept the plea, on February 1, 2008. As there is a dearth of case law on the application of § 111(a) to private individuals of any sort, let alone informants, and since the broad range of penalties available under § 111 allows, in cases such as Defendant's, a more accurate matching of the punishment to the crime than does 18 U.S.C. § 1513(b)(2), an explanation of the reasoning behind this, decision is appropriate. It begins with an analysis of the pertinent statutes.

1. Informant as a covered person under the statutes

Section 111(a) makes it a crime to "forcibly assault[], resist[], oppose[], impede[], intimidate[], or interfere[] with any "person designated in section 1114 of [Title 18] while [that person is] engaged in or on account of the performance of official duties...."³ Section 1114 makes it a federal crime to kill or attempt to kill certain individuals with some connection to the federal government. Earlier versions of § 1114 simply "provided a long list of protected federal officials. See United States v. Roy, 408 F.3d 484, 489 n. 2 (8th Cir. 2005); United States v. Saw, 272 F.Supp.2d 897, 903 n. 4 (N.D.Cal.2003) (citing 18 U.S.C. § 1114 (1994)) (listing all protected individuals as of 1994). However, Congress chose to define the persons protected by § 1114 in a "completely different manner" with the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, § 727(a),110 Stat. 1302. Sapp, 272 F.Supp.2d at 904. Section 1114 now provides "even broader coverage" by criminalizing the killing or attempted killing of "any officer or employee of "the United States or any agency in any branch of the United States Government ... or any person assisting such an officer or employee in the performance of such duties or on account of that assistance ..." 18 U.S.C. § 1114 (emphasis added); United States, v. Smith, 296 F.3d 344, 347 n. 1 (5th Cir. 2002). Whether an FBI informant falls within the italicized protected category was the threshold issue in the Court's consideration of Defendant's plea.

The plain meaning of §§ 111 and 1114 seems to bring government informants within the ambit of the statutes. See Williams v. Taylor, 529 U.S. 420, 431, 120 S.Ct. 1479, 1487-88, 146 L.Ed.2d 435, 448 (2000) (citations and internal quotation marks omitted) (holding that the courts must "give the words of a statute their ordinary, contemporary, common meaning absent an indication Congress intended them to bear some difference import"). However, the cases addressing the issue are so sparse as to have given the Court pause. There is nothing remotely on point in the Third Circuit. Moreover, much of the pre-1996 jurisprudence is of limited applicability, since the only non-official individuals covered by § 1114 before the 1996 amendments were "person[s] employed to assist" a United States marshal or deputy marshal, or "any person assisting [an officer, employee or agent of the customs or internal revenue service] hi the execution of his duties." Sapp, 272 F.Supp.2d at 904 n. 5.

The case that most closely resembles Defendant's is Gravely v. United States, No. Civ.A. 7:00-CV-00741, Civ. A. 7:00-CV-00692, 2001 WL 34806541 (W.D.Va. Sept. 6, 2001) (no LEXIS cite available). In Gravely, an individual "provided investigators with information relevant to the prosecution of Jimmie Penn." Id. at *1. Penn's father offered to pay Gravely to kill the informant. Id. Gravely subsequently drove a vehicle from which another person shot at "a moving vehicle occupied by [the informant] and others"; accepted money from Penn's father; and gave that money to the actual shooter. Id. Gravely was charged with, pleaded guilty to, and was sentenced for violation of 18 U.S.C. § Id. at *1, *3.

In appealing his sentence pursuant to 28 U.S.C. § 2255, Gravely argued that he, should have been sentenced under 18 U.S.C. § 1513, the statute that criminalizes retaliation against federal witnesses, instead of under § 1114, because his intended victim "was not assisting a federal officer in the performance of her official duties." Id. at *3. His primary argument was that no federal officer was present during the attempted murder. Id.

The court, applying a pre-1996 holding involving an undercover state officer who was "working in conjunction with federal officers," found that anyone `who assists a federal officer perform his investigative function" is a protected party under § 1114. Id. at *4 (citing United States v. Chunn, 347 F.2d 717, 721 (4th Cir.1965)). It also found that an individual may be a protected person under § 1114 even if the federal officer is not present at the time of the assault. Id. (citing United States v. Murphy, 35 F.3d 143, 147 (4th Cir.1994)).⁴

A case decided under the previous version of § 1114 provides substantial support for the Gravely court's...