U.S. v. Heid, 89-3035

• Decision Date: 08 June 1990
• Docket Number: No. 89-3035,89-3035
• Citation: 904 F.2d 69
• Parties: UNITED STATES of America v. John HEID, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 69

904 F.2d 69

284 U.S.App.D.C. 249

UNITED STATES of America v. John HEID, Appellant.

No. 89-3035.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 21, 1989.

Decided June 8, 1990.

Sebastian K.D. Graber, Wolftown, Va., (appointed by this court) for appellant.

Geoffrey Bestor, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Elizabeth Trosman, and Eric B. Marcy, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before EDWARDS, BUCKLEY, and WILLIAMS, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

John Heid appeals his conviction for assaulting a Deputy United States Marshal in violation of 18 U.S.C. Sec. 111 (1982). Heid contends that he was erroneously convicted for simply going limp as marshals attempted to remove him from the courthouse and that going limp cannot constitute the forcible action necessary to violate section 111. Because it is clear from the indictment, the record of Heid's trial, and the jury instructions that Heid was convicted for other affirmative conduct and not for the passive act of going or remaining limp, we uphold his conviction.

I. BACKGROUND

On June 7, 1988, John Heid and William Wardlaw were watching a hearing in Courtroom 19 on the sixth floor of the United States Courthouse in the District of Columbia. Security measures were high because the hearing involved conditions in a women's prison and the Marshal's Service had received intelligence that a demonstration of some form might occur. Deputy Marshal Donald W. Horton observed that Heid failed to stand when the judge left the courtroom. Heid again refused to stand when the judge re-entered the courtroom, despite Deputy Horton's requests that he do so. Heid stated that he stood for no one but God.

Deputy Horton then asked Heid to step out of the courtroom with him, but Heid refused, saying that he would only leave if carried out. Horton then summoned another deputy marshal, Albert Crew, to assist him in removing Heid from the courtroom. As Horton took hold of Heid, he went limp. Deputies Horton and Crew dragged Heid from the courtroom, whereupon Horton instructed Crew and another deputy marshal, William Pickett, to escort Heid out of the courthouse. Pickett and Crew then dragged Heid, who remained limp, to the stairwell.

As the three proceeded down the stairs, Heid's friend, William Wardlaw, entered the stairwell and became involved in a scuffle as to which there was conflicting evidence. The deputies testified that Wardlaw ran down the stairs shouting at them to let Heid go and that he ran into the backside of Pickett's right shoulder, whereupon Pickett turned and struck him twice in the face. According to the deputies, Heid then entered the fray and tried to tackle Pickett from behind, whereupon Pickett hit him once and subdued him. Heid and Wardlaw, on the other hand, testified that when Heid and the two deputies reached the first landing in the stairwell, Pickett, without provocation, began kicking Heid in the face. They also asserted that when Wardlaw saw Pickett kicking Heid, he shouted at Pickett to stop, and that as Wardlaw approached, Pickett turned and began punching him. Heid testified that he attempted to place himself between Pickett and Wardlaw in order to protect Wardlaw, but that Crew restrained him from doing so.

After the scuffle, Heid and Wardlaw were placed under arrest and subsequently charged with assaulting Pickett in violation of 18 U.S.C. Sec. 111. That section, now amended in immaterial respects, then read as follows:

Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any [federal officer] while engaged in or on account of the performance of his official duties, shall be fined not more than $5000 or imprisoned not more than three years, or both.

Near the end of the ensuing trial, and while the jury was absent, the district court advised counsel that it proposed to instruct the jury that whether Heid's "allow[ing] his body to go limp ... constitutes forcible interference, [was] a question for the jury to decide." Trial Transcript of Sept. 20, 1988 ("Tr. IV") at 6. Counsel for Heid objected to this proposal and asked the court to specifically instruct the jury that merely going and remaining limp could not constitute forcible interference. The court ultimately decided to give neither specific instruction, choosing to rely on the pattern instructions instead.

During its deliberations, the jury sent out a note that read as follows:

The adverb, forcibly, is causing excessive concern in determining a verdict. Must we consider the entire indictment as stated in making a decision? Can the Court define forcibly?

Trial Transcript of Sept. 21, 1988 ("Tr. VI") at 8. Heid's counsel again urged the court to affirmatively instruct the jury that going and remaining limp could not constitute forcible conduct, but the court again refused. Instead, it simply reread the relevant portions of its original instructions. The court then asked the jury foreman, "Do you think that covers the points that the jury has in mind?" Id. at 9-10. The foreman responded, "Yes, sir, I think so." Id. at 10. The jury returned with its verdict twenty-seven minutes later, acquitting Wardlaw but convicting Heid. Heid filed a motion for a judgment of acquittal, which was denied.

II. DISCUSSION

Heid raises numerous issues in this appeal, only one of which merits discussion. Heid's principal contention is that he was convicted of violating 18 U.S.C. Sec. 111 for simply being limp while the deputy marshals attempted to remove him from the courthouse and that being limp cannot, as a matter of law, constitute the actus reus for this crime. Heid specifically points to two alleged errors of the district court. First, the court, in its memorandum order denying Heid's motion for judgment of acquittal, stated that going limp "constituted interference with or impeding or obstructing or resisting the marshals who were performing their duty." United States v. Heid, Cr. No. 88-0249-OG, mem. order at 10, 1988 WL 136968 (D.D.C. Dec. 13, 1988). Second, the district court denied Heid's request to instruct the jury that going limp could not constitute the forcible action necessary to violate the statute.

While we seriously question whether the mere act of going limp can constitute the forcible action necessary to violate 18 U.S.C. Sec. 111, we need not reach this issue because the district court's denial of Heid's motion for judgment of acquittal was clearly correct: the jury was properly instructed on the elements of section 111, and our review of the record convinces us that there is no reasonable possibility that the jury could have believed that the mere act of going or remaining limp could constitute the crime with which Heid was charged. Rather, we are persuaded that the jury understood that Heid was charged with assaulting Deputy Pickett in the stairwell, and that it was for this conduct that he was convicted.

The Government, in its opening statement, told the jury that the crime for which the defendants were on trial was the alleged assault on Deputy Pickett in the stairwell. Trial Transcript of Sept. 15, 1988 ("Tr. I") at 29. None of the Government's witnesses ever indicated that Heid was arrested for going or remaining limp, or that this conduct formed the basis for the charge against him. Rather, Deputies Horton, Pickett, and Crew all testified that Heid offered no resistance as he was dragged down the hallway, and that Heid and Wardlaw were arrested and charged for assaulting Deputy Pickett in the stairwell. See id. at 47-48, 81-82, 84, 86; Trial Transcript of Sept. 19, 1988 ("Tr. III") at 150-51. The scuffle in the stairwell was characterized during the trial as the "incident" and the stairwell as the scene of the assault. See, e.g., Tr. I at 56-62, 113, 194. Heid's closing argument emphasized to the jury that the Government's case hinged on the assertion that he had assaulted Deputy Pickett in the stairwell. Tr. IV at 33. Furthermore, the closing arguments of both Heid and the Government stressed to the jury that the outcome of the case turned on whether the jury believed the testimony of the deputies or the defendants, which differed only in their account of the events in the stairwell. See id. at 27-28, 34-37, 43-49, 63-67.

Finally, the indictment charged Heid with having forcibly assaulted Deputy Pickett. Had the act of going limp been the gravamen of the charge, it would have encompassed all three of the deputies, each of whom...