U.S. v. Hillsman

Decision Date05 September 1975
Docket NumberNos. 75-1087,75-1088,s. 75-1087
Citation522 F.2d 454
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James HILLSMAN and Clinton Bush, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Harold Abrahamson, Hammond, Ind., for defendants-appellants.

John R. Wilks, U.S. Atty., Frank J. Gray, Asst. U.S. Atty., Fort Wayne, Ind., Fred W. Grady, Asst. U.S. Atty., Hammond, Ind., for plaintiff-appellee.

Before MOORE, Senior Circuit Judge, * and PELL and TONE, Circuit Judges.

PELL, Circuit Judge.

The defendants James Hillsman and Clinton Bush were convicted by a jury of assaulting a federal officer, in violation of 18 U.S.C. § 111. On appeal, the defendants contend that: (1) the indictment should have been dismissed because the officer who was assaulted was not, at the time of the assault, a person designated in 18 U.S.C. § 1114; (2) the district court erred in refusing to instruct the jury that if the defendants reasonably believed the federal officer to be a fleeing felon, the defendants should be acquitted; and (3) the district court erred in admitting certain testimony.

I

On February 8, 1974, the defendants, along with two to three hundred other persons, attended a funeral in Gary, Indiana. Several agents of the Drug Enforcement Administration were conducting undercover surveillance at the funeral home for the purpose of observing and identifying suspected narcotics dealers. All of the agents involved in the surveillance wore ordinary "street" clothes and drove unmarked cars.

Agent David Munson, who was equipped with a video tape camera, stationed himself outside the funeral home alongside photographers from a Gary newspaper and began filming the mourners as they left the funeral home. Most of the several hundred mourners at the funeral home (including the defendants) were black and a group of the black mourners demanded that Munson, who is white, cease taking pictures and leave the area. One member of the crowd, William Hanyard, began shoving and hitting Munson when he continued to film the mourners. The defendants Hillsman and Bush were not identified as being in any way involved in the verbal or physical exchange with Munson.

Agent Kenneth Rhodes, the acting agent in charge of the DEA in the area, was approximately six feet from Munson at this time and observed Hanyard's attack on the agent. Intending to shoot Hanyard, Rhodes, who is black, drew his revolver and began to assume the "combat position." However, before he was able to get into this position, Rhodes either stepped back or was pushed from the rear and his gun discharged prematurely. The bullet merely grazed Hanyard but struck and killed Albert Griffin, an innocent bystander.

Immediately after the shot was fired, Rhodes announced that he was a federal agent and told Munson, "Let's get out of here." Although Munson heard the latter statement, he did not hear Rhodes announce that he was a federal officer. Rhodes and Munson then moved to their cars. Munson jumped into a car with several other agents and Rhodes stopped to talk briefly with one of these agents. Rhodes then began walking toward his own car. At no time did Rhodes or Munson approach the body of Griffin.

As Rhodes was moving toward his car, a woman in the crowd pointed at him and said, "He is the one; there he goes." A group of the mourners then began running after Rhodes. As Rhodes drove away, shots were fired at his car. One bullet struck the car but Rhodes himself was not injured.

Hillsman and Bush were identified as being members of the group that chased Rhodes and were observed firing weapons at Rhodes' car.

II

Hillsman and Bush contend that the indictment in this case was fatally defective in that the federal officer assaulted was not a member of an agency designated in the pertinent statutes.

The defendants were charged in the indictment with assaulting Agent Rhodes, an officer of the Drug Enforcement Administration, in violation of 18 U.S.C. § 111. Section 111 prohibits, inter alia, forcibly assaulting, intimidating, or interfering with any person designated in 18 U.S.C. § 1114. 1 The defendants point out that in February 1974, at the time of the assault on Rhodes, § 1114 designated, as protected persons, the members of the Bureau of Narcotics and Dangerous Drugs, but not those of the Drug Enforcement Administration. 2 The defendants argue that since the Drug Enforcement Administration was not included in § 1114 at the time of the assault on Rhodes, the indictment should have been dismissed for failure to charge an offense.

The seeming discrepancy in § 1114 was, as the defendants concede, the result of a reorganization of the federal agencies involved in narcotics law enforcement. In July of 1973, pursuant to a reorganization plan, 3 the Bureau of Narcotics and Dangerous Drugs was abolished and its functions transferred to the newly created Drug Enforcement Administration. Section 1114, however, was not amended to substitute this new agency for the defunct Bureau of Narcotics and Dangerous Drugs until October 26, 1974, after the assault in the present case.

In United States v. Irick, 497 F.2d 1369 (5th Cir. 1974), the Fifth Circuit was faced with the identical issue. The Fifth Circuit held that, under 5 U.S.C. § 907(a), after the reorganization of the agencies, the agents of the Drug Enforcement Administration were within the ambit of sections 111 and 1114, even though, at the time of the assault in question, section 1114 had not yet been modified expressly to include the Drug Enforcement Administration. We agree.

5 U.S.C. § 907(a) provides, in pertinent part:

"A statute enacted, and a regulation or other action made, prescribed, issued, granted, or performed in respect of or by an agency or function affected by a reorganization under this chapter, before the effective date of the reorganization, has, except to the extent rescinded, modified, superseded, or made inapplicable by or under authority of law or by the abolition of a function, the same effect as if the reorganization had not been made." (Emphasis added.)

As the Fifth Circuit noted, the purpose of § 907(a) is to avoid "leav(ing) a hiatus in existing law when a reorganization has taken place." 497 F.2d at 1372. Thus, when a reorganization of an agency occurs, § 907(a) provides for the continuing effect of any statute relating to the agency and enacted before the effective date of the reorganization. Pursuant to § 907(a), a prior existing statute has "the same effect as if the reorganization had not been made."

In the present case, then, once the reorganization took place, the agents of the Drug Enforcement Administration were "protected persons" under § 1114 to the same extent that the agents of the Bureau of Narcotics and Dangerous Drugs had been, even though § 1114 had not yet been formally modified to reflect the reorganization of the agency. Were we to accept the defendants' contention that the agents of the Drug Enforcement Administration were not within the ambit of § 1114 until the formal modification of § 1114, we would be frustrating the very purpose of § 907(a) by creating just the type of hiatus that the statute seeks to avoid.

The defendants contend, however, that, since it is a penal statute, § 1114 must be strictly construed and applied only to the agencies specifically designated in it. This argument was properly answered by the Fifth Circuit in Irick :

"The strict construction concept does not . . . require that other pertinent statutes, in this case section 907(a), be disregarded. Furthermore, the doctrine is grounded in the principle that persons accused of a crime must be afforded fair warning of the prohibited conduct. . . . It cannot be validly argued that defendants were not given adequate notice of the prohibited conduct, that is, the assault of a federal officer. Section 907(a) in no way changes the nature of this conduct." 497 F.2d at 1373.

III

The defendants next argue that the district court erred in failing to instruct the jury that if the defendants reasonably believed Rhodes to be a fleeing felon, the jury should find the defendants not guilty.

The undisputed evidence indicated that neither Bush nor Hillsman was involved in the Munson-Hanyard skirmish. Both defendants testified that although they saw the altercation, they, like Agent Munson, did not hear Rhodes announce that he was a federal officer. 4 According to their testimony, the defendants pursued Rhodes because they believed him to be a felon fleeing from the scene of the crime and they wanted to catch and hold him until the police arrived. If Hillsman and Bush did fire at Rhodes' car, a point which the defense did not concede, they did so, according to one theory of the defense, only because of their mistaken belief that Rhodes was a fleeing felon.

In its charge to the jury, the district court instructed the jury that, in order to find the defendants guilty, the jury must "first find that they committed an intentional act willfully done without legal excuse." The lower court also instructed, however, that:

"In order for the Government to establish the offense charged in the indictment beyond a reasonable doubt, it is not necessary that the Government prove as part of its case that the defendants or either of them had actual knowledge that the victim was a Federal Drug Enforcement Agency Agent who was engaged in the performance of his official duties."

With respect to the defendants' claim that they were only seeking to stop a person they believed to be a fleeing felon, the district court gave a lengthy instruction concerning the right of a private citizen to make an arrest. The court however, refused to give a defense instruction which provided:

"There has been evidence that the Defendants, James Hillsman and Clinton Bush, gave chase to Kenneth Rhodes, as he was leaving the scene of the funeral of Van Lott in the vicinity of 23rd Avenue and Washington...

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