U.S. v. Green, 90-2239

• Decision Date: 21 March 1991
• Docket Number: No. 90-2239,90-2239
• Citation: 927 F.2d 1005
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy GREEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1005

927 F.2d 1005

UNITED STATES of America, Plaintiff-Appellee, v. Roy GREEN, Defendant-Appellant.

No. 90-2239.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 10, 1990.

Decided March 21, 1991.

Ruth M. Heitz, Office of the U.S. Atty., Madison, Wis., for plaintiff-appellee.

Daniel W. Hildebrand, Ross & Stevens, Madison, Wis., for defendant-appellant.

Before CUDAHY, FLAUM, and MANION, Circuit Judges.

FLAUM, Circuit Judge.

Defendant Roy Green was convicted of two counts of assaulting a federal officer in violation of 18 U.S.C. Sec. 111. He appeals, challenging the district court's jury instruction concerning the duties of the federal officers who were the victims of the assaults, the district court's failure to instruct the jury that the assault must be willful, and its instruction that the government does not have to prove that the assaults caused injury. We affirm the convictions but remand the case for resentencing.

I. FACTS AND PRIOR PROCEEDINGS

Roy Green is a prisoner who on December 4, 1989 was serving his sentence at the Federal Correctional Institution in Oxford, Wisconsin. On the morning of December 4, the food administrator at Oxford, Thomas Buchberger, complained to Randall White, a cook-foreman at the prison, about the cleanliness of a hallway outside the prison dining hall. White supervised a group of inmates who were responsible for sanitation in the dining hall area. The inmate responsible for maintaining the hallway that attracted Buchberger's attention was Martin Fitzgerald, whom White ordered to clean it. Fitzgerald refused to comply with this request, and White and Fitzgerald began to argue. A crowd of inmates gathered at the scene, including the defendant in this case, Roy Green.

White sought to disperse the group of prisoners, and was for the most part successful. Green, however, was one of several inmates who refused to leave the scene. When White attempted to use his walkie-talkie to call for guards to break up the remaining inmates, Green punched him in the jaw, knocking him to the floor. Another cook-foreman, Rick Gruen, came to White's assistance and restrained Green. While he was being restrained, Green hit Gruen as well.

A grand jury returned an indictment against Green, charging him with two counts of violating 18 U.S.C. Sec. 111, the first relating to the blow to White's jaw, the second to the fight with Gruen. Following a one-day jury trial, Green was found guilty under both counts. He was sentenced to thirty-seven month concurrent sentences on each count, to be served after he completed the remainder of the sentence he was serving when the assaults occurred.

II. THE DUTIES OF A FEDERAL CORRECTIONS OFFICER

Section 111(a)(1) makes it a crime to forcibly assault a federal employee who falls within a large number of protected categories while that employee is "engaged in or on account of the performance of official duties." The protected categories include officers and employees "of any United States penal or correctional institution." 18 U.S.C. Sec. 1114. The duties of a federal employee are a question of federal law, United States v. Kelley, 850 F.2d 212, 213 (5th Cir.), cert. denied, 488 U.S. 911, 109 S.Ct. 267, 102 L.Ed.2d 255 (1988), but whether an assaulted federal employee is "engaged in" official duties when he is assaulted, or whether the assault takes place "on account of" these duties, are questions of fact. United States v. Hoffer, 869 F.2d 123, 126 (2d Cir.), cert. denied, 490 U.S. 1094, 109 S.Ct. 2440, 104 L.Ed.2d 996 (1989); United States v. Lopez, 710 F.2d 1071, 1074 (5th Cir.1983). Proof beyond a reasonable doubt that at the time of the assault the victim was engaged in the performance of his official duties or was attacked on account of these duties is an essential element of a violation of Sec. 111. United States v. Hohman, 825 F.2d 1363, 1365 (9th Cir.1987); United States v. Boone, 738 F.2d 763, 765 (6th Cir.), cert. denied, 469 U.S. 1042, 105 S.Ct. 528, 83 L.Ed.2d 416 (1984).

Green alleges that the district court improperly removed the factual question of whether the government had satisfied this element of the offense from the jury by instructing it that

The duties of a federal correctional employee include providing for the safekeeping, protection, and discipline of all persons housed within federal correctional institutions.

You may find that the victims were engaged in the performance of official duties if you find that at the time of the alleged assault they were acting within the scope of what they were employed to do.

Record Entry ("R.") 40. The district court derived this instruction from 18 U.S.C. Sec. 4042, which lists the duties of the Bureau of Prisons. Green argues that the duties of the Bureau of Prisons are broader than the duties of the individual prison employees he assaulted and that the district court's instruction ignored this distinction. He contends that this error prevented the jury from reaching the factual question of whether in seeking to discipline Fitzgerald and disperse the gathered group of prisoners White and Gruen went beyond the performance of their official duties.

We agree that not every employee of the Bureau of Prisons performs the full range of the Bureau's duties as set out in Sec. 4042. The resolution of the issue Green raises on appeal depends, however, not on the abstract possibility that the duties of a Bureau employee would not extend to discipline and maintaining order but on the question of whether the district court's instruction accurately represented the duties of White and Gruen and left it for the jury to determine whether they were fulfilling these duties when Green assaulted them. We conclude that it did both.

Green points to the fact that both White and Gruen were prison food service workers rather than guards to argue that when White disciplined Fitzgerald and attempted to disperse the group of inmates, and when Gruen came to White's aid, they went beyond the scope of their duties. Cases interpreting the phrase "engaged in or on account of the performance of official duties" in Sec. 111, however, do not support this kind of occupational pigeonholing, opting instead for an interpretation of this phrase that is broad enough to fulfill Congress's goals of protecting federal officers and facilitating the accomplishment of federal functions. See, e.g., United States v. Reid, 517 F.2d 953, 964 (2d Cir.1975) (Friendly, J.); Hoffer, 869 F.2d at 125-26; Boone, 738 F.2d at 765; Lopez, 710 F.2d at 1074. Given the sweep of the phrase "official duties," the district court did not err in instructing the jury that the duties of a federal prison employee, even a food service worker, extend to "safekeeping, protection and discipline." Having been accurately apprised as to the scope of a prison employee's duties, the jury was instructed to determine whether White and Gruen remained within the admittedly broad roles federal law assigns prison employees when Green used force against them.

III. WILLFULNESS INSTRUCTION

The second ground Green raises on appeal is the district court's refusal to instruct the jury that in order to convict it had to conclude that his assaults were willful and to define willful as knowing, intentional, and voluntary. Green argues that the alleged assault on Gruen was not willful because it occurred inadvertently when Gruen, having come to White's assistance, had Green in a bear-hug. He also observes that other circuits which, unlike this one, have jury instructions for violations of Sec. 111, include a willfulness instruction. The government responds that Gruen testified that the blows he received were from actual punches and not incidental contact. It also points out that the statute does not contain a willfulness requirement and this Circuit's pattern jury instructions discourage instructions defining willfulness when it is not an...