U.S. v. Giampino

• Decision Date: 02 June 1982
• Docket Number: D,No. 1034,1034
• Citation: 680 F.2d 898
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert GIAMPINO, Defendant-Appellant. ocket 81-1509.
• Court: U.S. Court of Appeals — Second Circuit

Page 898

680 F.2d 898

UNITED STATES of America, Plaintiff-Appellee, v. Robert GIAMPINO, Defendant-Appellant.

No. 1034, Docket 81-1509.

United States Court of Appeals Second Circuit.

Argued April 29, 1982.

Decided June 2, 1982.

John McCann, Asst. U. S. Atty., Syracuse, N. Y. (George H. Lowe, U. S. Atty., N. D. N. Y., and Joseph A. Pavone, Asst. U. S. Atty., Syracuse, N. Y., on the brief), for plaintiff-appellee.

John J. Brunetti, Syracuse, N. Y., for defendant-appellant.

Before MANSFIELD and KEARSE, Circuit Judges, and CABRANES, District Judge. ^*

KEARSE, Circuit Judge:

Defendant Robert Giampino appeals from a judgment of conviction entered in the United States District Court for the Northern District of New York, after a jury trial before Neal P. McCurn, Judge, for forcibly impeding and assaulting a federal marshal, in violation of 18 U.S.C. § 111 (1976). Because the district court failed to accede to the defendant's proper request that the jury be instructed with respect to a lesser-included offense under 28 U.S.C. § 1501 (1976), we reverse and remand.

FACTS

Although there are two opposing versions of the key events leading to the present prosecution, certain facts are not in dispute. On September 1, 1981, a temporary restraining order was entered in the district court in a case entitled Good Vibrations, Inc. v. Various John Does, No. 81-CV-916, restraining unauthorized individuals from selling T-shirts bearing the name, trademark, or service mark of the "Charlie Daniels Band" at or near the gate of the New York State Fair Grounds in Syracuse. On September 3 and the early morning hours of September 4, federal marshal James A. Tassone was, in the performance of his official duties, working at the Fair Grounds to enforce the restraining order. Tassone was accompanied by an assistant, William Chrysler. Around midnight, Tassone spied defendant Giampino selling Charlie Daniels Band T-shirts at a location at which Tassone knew no licensed sellers were operating. Tassone and Chrysler accosted Giampino; Tassone identified himself as a federal marshal, informed Giampino of the court order, and confiscated Giampino's bootleg T-shirts. This confrontation was, apparently, peaceful.

Some ten minutes later, as the concert audience began to fill the exit walkways, Tassone and Chrysler spied on a ramp two other persons they thought were selling unauthorized T-shirts, and they began to walk toward these two sellers. Giampino saw Tassone and Chrysler approaching these T-shirt bootleggers, one of whom was a friend of Giampino, and Giampino immediately moved toward his friend.

The accounts of what followed differ. Tassone testified that when he was a step or two from the vendor directly in front of him he heard shouting from behind, as Giampino came shoving through the crowd, yelling, in substance, "Look out. They are after you. Run." Giampino shoved Tassone against the side railing, nearly knocking him off the ramp. Tassone regained his balance and tried to push his way past Giampino, whereupon Giampino punched him in the face. Tassone in turn punched Giampino in the face. Eventually, after other encounters not material to our review, Tassone placed Giampino under arrest and, following some additional scuffling, handcuffed him.

The testimony of Chrysler was similar although not identical. Chrysler testified that as he was approaching a person he believed to be a bootleg vendor, Giampino was shouting to someone else to run. Chrysler saw Giampino shove Tassone as Tassone was about to grab the other T-shirt seller, but did not see Giampino punch Tassone at this point. Chrysler testified that minutes later he saw a struggle as Tassone attempted to handcuff Giampino, and saw Giampino punch Tassone during this scuffle.

The description given at trial by Giampino differs from the versions of Tassone and Chrysler in one material respect: Giampino testified that no punches were thrown and that he never pushed Tassone. Giampino's version of what followed the peaceful confiscation of his own supply of bootleg T-shirts was that he saw Tassone and Chrysler approaching his friend who was bootlegging T-shirts, and he rushed past them and told his friend, "nose-to-nose," to run because the marshals were coming. As his friend hesitated and the marshals drew near, Giampino gave his friend a push, and his friend "left very fast." The marshals "were very upset" and pushed Giampino to the ground and attempted to knee him in the face. Giampino testified that he never punched or pushed Tassone nor used any other form of force against him.

Section 111 of 18 U.S.C., under which Giampino was prosecuted, provides in pertinent part as follows:

Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.

Marshals are designated as protected officials in 18 U.S.C. § 1114 (1976). At the close of the evidence Giampino requested, pursuant to the lesser-included offense doctrine, that the jury be instructed that if it found that Giampino had obstructed Tassone without the use of force it was entitled to acquit him of violating § 111, a felony, and find him guilty only of violating 18 U.S.C. § 1501, a misdemeanor. ¹ Section 1501 reads as follows:

Whoever knowingly and willfully obstructs, resists, or opposes any officer of the United States, or other person duly authorized, in serving, or attempting to serve or execute, any legal or judicial writ or process of any court of the United States, or United States magistrate; or

Whoever assaults, beats, or wounds any officer or other person duly authorized, knowing him to be such officer, or other person so duly authorized, in serving or executing any such writ, rule, order, process, warrant, or other legal or judicial writ or process-

Shall, except as otherwise provided by law, be fined not more than $300 or imprisoned not more than one year, or both.

At the government's urging, and relying on United States v. Abraham, 627 F.2d 205, 207 (9th Cir. 1980), the district court denied Giampino's requested instruction on the ground that § 1501 is not a lesser offense since the elements of the offenses described by § 111 and by § 1501 are identical.

The jury, instructed only as to § 111, found Giampino guilty of violating that section. ² On appeal Giampino renews his contention that he was entitled to a lesser-included offense instruction. ³ We agree and reverse the judgment.

DISCUSSION

The three fundamental criteria for determining whether, in a particular case, a defendant is entitled to have the jury instructed as to a lesser-included offense are well established. First, for an uncharged offense to be "included," all of its elements must also be elements of the offense charged. E.g., United States v. Nelson, 563 F.2d 928, 930-31 (8th Cir. 1977); United States v. Liddy, 542 F.2d 76, 82 (D.C.Cir.1976). Second, to be "lesser," the uncharged included offense must be composed of fewer than all of the elements comprising the offense charged. Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956). Finally, as to the element of the charged offense of which proof is not required for establishment of the lesser-included offense, there must be an evidentiary basis upon which a rational jury could find that element not established. "A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense." Sansone v. United States, 380 U.S. 343, 350, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965) (emphasis added). Accord, United States v. Tsanas, 572 F.2d 340, 343 (2d Cir.), cert. denied, 435 U.S. 995, 98 S.Ct. 1647, 56 L.Ed.2d 84 (1978).

All three criteria are satisfied in the present case. There is no dispute that a § 1501 offense was "included" in the § 111 offense. Every element required to establish Giampino's obstruction of Tassone in violation of § 1501 was also essential for establishment of Giampino's guilt under § 111. Thus, if the prosecution proved a violation of § 111, it necessarily also proved a violation of § 1501. ⁴

The principal disagreement centers on whether § 1501 is a "lesser" offense than § 111. Giampino contends that § 1501 is lesser because whereas § 111 requires proof that the defendant used force, § 1501 does not. The government takes the position relying on United States v. Abraham, supra, 627 F.2d 205, that both sections require proof of force. It is clear that § 111, which reaches one who "forcibly assaults, resists, opposes, impedes, intimidates or interferes with" a federal marshal performing his duties, requires proof of force. United States v. Bamberger, 452 F.2d 696 (2d Cir. 1971), cert. denied, 405 U.S. 1043, 92 S.Ct. 1326, 31 L.Ed.2d 585 (1972); United States v. Camp, 541 F.2d 737, 739 (8th Cir. 1976) ("(T)he use of force is an essential element of the offense defined in 18 U.S.C. § 111...."); Long v. United States, 199 F.2d 717, 719 (4th Cir. 1952) (adverb "forcibly" modifies each of the verbs following it). The mere obstruction of a federal marshal without the use or threat of force would not violate § 111. As we stated, in United States v. Bamberger,

(s) 111 is not meant to sweep in all harassment of government officials involving 'laying a finger' on them. Nor is it used to penalize frustrating an official, without more, even if that action is deliberate. The central issue ... is whether the defendants attempted to or did resort to force as a method of persuasion of a federal official.

452 F.2d at 699.

Section 1501, by contrast, describes some offenses that may be committed without the use or threat of force. Although the second paragraph of § 1501, which deals with one who ...