U.S. v. Jackson

• Decision Date: 05 March 1975
• Docket Number: No. 73-1519,73-1519
• Citation: 168 U.S.App.D.C. 198,513 F.2d 456
• Parties: UNITED STATES of America v. Eddie W. JACKSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 456

513 F.2d 456

168 U.S.App.D.C. 198

UNITED STATES of America v. Eddie W. JACKSON, Appellant.

No. 73-1519.

United States Court of Appeals, District of Columbia Circuit.

Argued March 1, 1975.

Decided March 5, 1975.

Daniel E. Schultz, Washington, D. C. (appointed by this Court), for appellant.

John J. Mulrooney, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., were on the brief for appellee. Earl J. Silbert, U. S. Atty., also entered an appearance for appellee.

Before FAHY, Senior Circuit Judge, and LEVENTHAL and ROBINSON, Circuit Judges.

ROBINSON, Circuit Judge:

By a single-count indictment, Eddie W. Jackson was charged with having, "corruptly by threats, endeavored to intimidate Barry Sutton, a witness in the United States District Court for the District of Columbia," in violation of 18 U.S.C. § 1503. ¹ Waiving a jury, he was tried by the court, found guilty and sentenced to imprisonment. Now, on this appeal, he asserts that the trial judge erred in denying his motion for a judgment of acquittal after the Government had presented its evidence. For reasons articulated herein, we remand the case for reconsideration.

I

We first recount the undisputed events precipitating this litigation. Jackson was on trial in the District Court on a charge of robbery. ² The Government subpoened Sutton, a youth thirteen or fourteen years of age, who was an eyewitness to the affair. Sutton identified Jackson as a participant in the robbery, and after so testifying Sutton was excused by the trial judge. ³

At the end of the court day, both sides had rested, and the judge recessed the trial. Remaining, of course, were summations by counsel, instructions by the judge and deliberations by the jury. Still later that same day, Jackson encountered Sutton in a sandwich shop and approached him. "If I get a day for something I didn't do," Jackson said, "I will will you and your father." He added, "I should drag you out on the street and whip you"; "(i)f I had my pistol," he declared, "I'd shoot you right now." ⁴

That, in brief summary, was the Government's evidence. When it was in, defense counsel moved for a judgment of acquittal on the ground that no violation of Section 1503 was indicated. The trial judge denied the motion, whereupon defense counsel introduced two stipulations, ⁵ rested and renewed the motion. The judge heard argument, requested memoranda from counsel, and took the matter under advisement. In due course, he rendered his decision rejecting Jackson's contentions and finding him guilty as charged, and shortly thereafter he imposed sentence. ⁶

II

Section 1503 defines several distinct offenses, two of which have relevance here. One is an "endeavor," by "threat," to "intimidate" a "witness" in a federal court "in the discharge of his duty." ⁷ The other is "injur(y)" to a "witness in his person or property on account of his attending or having attended such court . . . or on account of his testifying or having testified to (some) matter pending therein." ⁸ Jackson argues here, as he did in the District Court, that after Sutton testified and was excused, he was no longer a "witness" in the robbery case, and that the threatening language addressed to him could not have constituted an endeavor to intimidate him in the discharge of his duty because that duty had already ended. Jackson further argues that when one acts toward another because he previously served as a federal-court witness, Section 1503 becomes operative only if the latter is "injure(d) . . . in his person or property," a circumstance neither alleged ⁹ nor proved in the case at bar. ¹⁰

As a criminal statute, Section 1503 is to be construed with customary strictness. ¹¹ To sustain the charge set forth in the indictment, ¹² it was incumbent upon the Government to prove that when accosted by Jackson, Sutton was still a witness in the robbery case, and that the threats were an endeavor to intimidate him in the discharge of his duty as such. ¹³ But in applying these requirements, we must not lose sight of the statutory purposes, ¹⁴ one of which clearly is the protection of participants in federal judicial proceedings, and thereby the protection of the public interest in the due administration of justice. ¹⁵ Reading Section 1503 in this light, we now examine the evidence to ascertain whether it was legally sufficient to support Jackson's conviction.

III

The first question for the trier of fact was whether, when confronted by Jackson, Sutton remained a witness. Indubitably, one is a witness, within the meaning of Section 1503, when he knows or is supposed to know material facts, and expectably is to be called to testify to them. ¹⁶ Just as clearly, he is not a witness when, despite his testimonial potential, there is no present prospect of ever exploiting it. ¹⁷ And surely one is no longer a witness when the proceeding in which he has testified is no longer pending. ¹⁸

The case before us does not squarely present any of these situations. Sutton did testify, and although he had been excused, the trial was not over when Jackson threatened him, nor at the time did the court lack authority to command his reappearance as a witness. ¹⁹ We agree that "the protection of the law, under (Section 1503), is coincident and continuous with the power of the court over the witness, to compel him to attend and give evidence in some pending case. . . ." ²⁰ Thus Sutton's status paralleled that of a witness between an initial and a subsequent appearance, ²¹ and the fact that the subpoena had been discharged ²² is immaterial. ²³ We hold that one who is called as a trial witness retains that character throughout the duration of the trial. ²⁴

IV

The fact that Jackson threatened Sutton does not of itself establish a violation of Section 1503. ²⁵ In the statutory language, the threats must have been a part of an "endeavor( ) to . . . intimidate" him "in the discharge of his duty." ²⁶ The word "endeavor," the Supreme Court has said, "describes any effort or assay to accomplish the evil purpose that the section was enacted to prevent." ²⁷ And it is the endeavor to bring about the forbidden result, and not success in achieving the result, that Section 1503 makes a crime. ²⁸ Here the threats Jackson uttered ²⁹ had a reasonable tendency to intimidate, ³⁰ whether they actually did so or not.

Jackson, of course, was fully aware of the robbery case and Sutton's relation to it, and the threats themselves make plain that Jackson was prompted by testimony Sutton had given. ³¹ More critically, however, it was essential that Jackson's remarks have been motivated at least partly by a purpose to deter further testimony by Sutton or to intimidate him with respect to any testimony he might give, for the endeavor must have been to intimidate Sutton in the discharge of his continuing duty as a witness, and an essential element of the offense was the intent to do that. ³²

In our view, the evidence was legally sufficient to support a conclusion that Jackson so intended to intimidate Sutton in the discharge of his continuing duty as a witness in the robbery case. He declared that he would kill Sutton "(i)f (he got) a day," and that he should whip and shoot him on the spot. ³³ Manifestly, those threats were capable of intimidating, ³⁴ and the reference to Sutton's participation as a witness was unmistakable. ³⁵ Intent may, and generally must, be proved circumstantially; ³⁶ normally, the natural probable consequences of an act may satisfactorily evidence the state of mind accompanying it, ³⁷ even when a particular mental attitude is a crucial element of the offense. ³⁸ We perceive nothing that would divert cases of the instant type from this branch of legal doctrine. ³⁹

V

Notwithstanding the legal capability of the evidence, however, we are somewhat in the dark as to whether it was found as a fact that in voicing the threats Jackson intended, in part at least, to intimidate Sutton in the discharge of any further witness-duty which he might be called upon to perform. The technique of proving a required intent is one thing; the determination as to whether there was that intent is quite another. However the proof of intent is undertaken, there can be no conviction unless the trier of fact ascertains that the intent actually existed. ⁴⁰ In the case before use, the evidence was susceptible to interpretation either as simply an outward manifestation of displeasure at Sutton's earlier testimony or as additionally a warning with respect to any further testimony he might give. Since the case was tried without a jury, there are no instructions to inform us as to whether the point was considered; and, quite understandably, the trial judge's remarks at the conclusion of trial focused on other important aspects of the case, ⁴¹ and did not elucidate the construction he placed on this segment of the evidence.

In these circumstances, we believe the interests of justice will best be served by a remand of the case to enable elimination of any doubt on that score. ⁴² If the trial judge did find, or now finds, that Jackson entertained the intent which would bring his conduct within the compass of Section 1503, the conviction must stand; otherwise the court's judgment must be recast. In the latter event, the judge may, of course, reduce the conviction to a lesser included offense ⁴³ or acquit, as upon reconsideration he might be persuaded.

So ordered.

1 "Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States or before any United States magistrate or other committing magistrate, or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate or other committing magistrate, in the...