U.S. v. Martin

• Citation: 163 F.3d 1212
• Decision Date: 31 December 1998
• Docket Number: No. 98-6089,98-6089
• Parties: 1999 CJ C.A.R. 579 UNITED STATES of America, Plaintiff-Appellee, v. Robert Allen MARTIN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1212

163 F.3d 1212

1999 CJ C.A.R. 579

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

No. 98-6089.

United States Court of Appeals Tenth Circuit.

Dec. 31, 1998.

William P. Earley, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.

Timothy W. Ogilvie, Assistant United States Attorney (Patrick M. Ryan, United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before KELLY, HOLLOWAY, and LUCERO, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Defendant-Appellant Robert Allen Martin appeals his conviction of one count of threatening to murder a law enforcement officer whose killing would be a crime under 18 U.S.C. § 1114, with intent to impede, interfere or retaliate against the officer, while he was engaged in or on account of his official duties, in violation of 18 U.S.C. § 115(a)(1)(B). Mr. Martin contends that the district court improperly denied his motion to dismiss because the object of the threat was not a federal officer within the meaning of § 115(a)(1)(B). He also challenges the sufficiency of the evidence and the calculation of his sentence under the Sentencing Guidelines. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

In 1996, detectives from the Enid, Oklahoma Police Department and the Enid office of the FBI launched a cooperative narcotics interdiction effort under the code name "Enid Storm." Detective Sergeant Brian O'Rourke, who headed the narcotics unit of the Enid Police Department, received a special deputation from the FBI that gave him nationwide jurisdiction while working on Enid Storm. The joint law enforcement operation resulted in numerous federal indictments, including those of Danny Bennett and Patrick Gill, two friends of Mr. Martin. After his arrest, Mr. Bennett agreed to cooperate with law enforcement, and, in August 1997, he informed the FBI that Mr. Martin had made several threats against Detective O'Rourke's life. Using a tape recorder provided by the FBI, Mr. Bennett recorded a conversation with Mr. Martin on or about August 30, 1997, in which Mr. Martin threatened to unload six bullets into Detective O'Rourke's brain. During the same conversation, Mr. Martin planned that he and Mr. Bennett would deny knowing each other after the murder. See Gov. Ex. 4-A.

A federal grand jury indicted Mr. Martin on three counts of threatening a federal law enforcement officer under 18 U.S.C. § 115(a)(1)(B). The first two counts stemmed from threats that Mr. Martin allegedly made on or about August 28, 1997 at Mr. Bennett's home and at a Kentucky Fried Chicken restaurant in Enid. A conversation recorded in Mr. Bennett's home on or about August 30, 1997 provided the basis for the third count. The district court denied Mr Martin's motion to dismiss the case because it found that Detective O'Rouke was a federal official within the meaning of § 115(a).

At trial, Mr. Bennett not only testified that Mr. Martin made threats against Detective O'Rourke's life, see 4 R. at 78, 84, 88, 92-95, but also that Mr. Martin asked him to buy ammunition and help "case" the police station. See id. at 85-86. Mr. Bennett and his common law wife, Tonya Sovine, testified that Mr. Martin showed them three types of weapons around the time that the threats were made: a .38 pistol, see id. at 72, 150; a sawed-off shotgun, see id. at 83, 164; and a .380 semi-automatic weapon that would increase Mr. Martin's firepower in a potential shootout with Detective O'Rourke. See id. at 108-10. Several witnesses, including Mr. Bennett's housemate, Mandy Daniels, and the defendant's mother, Mary Martin, confirmed that Mr. Martin owned a .380 semi-automatic gun but had misplaced the clip. See id. at 173-74; 5 R. at 244-45.

The jury convicted Mr. Martin of the third count, the threat documented on tape, and acquitted him of the other two. At sentencing, the court calculated a total offense level of twenty-one, given a base offense level of twelve, see U.S.S.G. § 2A6.1, with a six-level increase for conduct evidencing intent to carry out his threats and a three-level victim-related increase for threatening a law enforcement officer who was assisting the FBI.

A. Denial of Motion to Dismiss

In determining whether a local police detective deputized to participate in federal narcotics investigation is a federal officer within the meaning of 18 U.S.C. § 115(a)(1)(B), we encounter an issue of first impression. 18 U.S.C. § 115(a)(1)(B) makes it a crime to "threaten[ ] to ... murder ... a Federal law enforcement officer, or an official whose killing would be a crime under [18 U.S.C. § 1114]." 18 U.S.C. § 1114 provides for the punishment of

[w]hoever kills or attempts to kill any officer or employee of the United States or of any agency in any branch of the United States Government ... while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance.

The meaning of an "officer or employee of the United States" or a "person assisting such an officer" under § 1114 thus lies at the heart of this case.

We review the district court's interpretation of a statute de novo. See Southern Ute Indian Tribe v. Amoco Prod. Co., 151 F.3d 1251, 1256 (10th Cir.1998) (en banc). Yet, while the type of individual encompassed by § 1114 is a legal question for the court, the jury must decide the ultimate issue of fact--whether Detective O'Rourke was engaged in the performance of federal duties. See United States v. Bettelyoun, 16 F.3d 850, 853 (8th Cir.1994).

Mr. Martin argues that a local police detective does not become a federal law enforcement officer merely because he has been deputized to assist an FBI investigation and that, consequently, the district court lacked jurisdiction. According to Mr. Martin, Detective O'Rourke's authority to aid the FBI derived from 21 U.S.C. § 878, which explicitly states that "[s]tate and local law enforcement officers performing functions under this section shall not be deemed Federal employees and shall not be subject to provisions of law relating to Federal employees, except [5 U.S.C. 3374(c) ]." 21 U.S.C. § 878(b). Section 3374(c) in turn enumerates the statutory provisions under which state or local government employees assigned or on detail to a federal agency shall be considered federal employees. See 5 U.S.C. § 3374(c)(2). Because § 3374(c) does not refer to § 115, Mr. Martin concludes that § 115 does not apply to special deputies like Detective O'Rourke, an employee of the city of Enid.

Mr. Martin's argument fails because it erroneously conflates the terms "officer" and "employee." While the statutes upon which Mr. Martin relies pertain to employment status, neither § 115(a)(1)(B) nor § 1114 require that the object of the threat be a federal employee. In holding that a special deputy U.S. marshal was a federal officer for the purposes of 18 U.S.C. § 111, an analogous federal assault statute that also incorporates § 1114, the Ninth Circuit noted that § 3374(c) "deals primarily with employment matters." United States v. Diamond, 53 F.3d 249, 251 (9th Cir.1995). The Diamond court identified the dispositive factors under the assault statute as the officer's assistance to federal agents and his cross-deputation, rather than the source of his salary. See id.

The holding in Diamond comports with the Supreme Court's view that Congress intended § 111 to protect federal functions as well as federal officers. See United States v. Feola, 420 U.S. 671, 679, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). Other circuits construing the assault statute have reached similar conclusions. See Bettelyoun, 16 F.3d at 853 (holding that tribal officers under contract with the Bureau of Indian Affairs were federal officers under § 111); United States v. Oakie, 12 F.3d 1436, 1440 (8th Cir.1993) (affirming jury finding that tribal officer was BIA special deputy performing federal functions when assaulted); United States v. Torres, 862 F.2d 1025, 1030 (3rd Cir.1988) (concluding that officer assigned to DEA Task Force at time of assault "fell within the ambit of those persons sheltered by section 111").

Mr. Martin attempts to distinguish § 111 from § 115, the threat statute at issue here. However, both the assault statute and the threat statute rely on § 1114's definition of protected persons. See 18 U.S.C. § 115(a)(1)(A), (B); 18 U.S.C. § 111(a). Furthermore, the contention that Bettelyoun and related cases are inapposite because the tribal officers in question derived federal authority from the Indian Law Enforcement Reform Act of 1990, see 25 U.S.C. § 2804(a), ignores the Eighth Circuit's observation that "[e]ven in the absence of a § 2804 contract, a tribal officer who has been designated as a Deputy Special Officer of the BIA is a federal officer within the meaning of § 111 when performing the federal duties he or she had been deputized to perform." Bettelyoun, 16 F.3d at 853 n. 2. The Indian Law Enforcement Reform Act does not provide the sole basis of federal jurisdiction in cases involving tribal officers. See Oakie, 12 F.3d at 1440 & n. 2 (government sustained the burden of proof that a tribal officer, acting without § 2804(a) contract, was enforcing federal law). Thus, we can look to § 111 decisions for guidance in determining whether Detective O'Rourke was a federal officer under § 115.

Like the officers in the § 111 cases, Detective O'Rourke was deputized to participate in a federal investigation during the time that the charged conduct occurred. Moreover, even if Detective O'Rourke had stopped working with the FBI by late August 1997, he still would have enjoyed the protection of § 115 because the threats could be construed as retaliation for earlier federal indictments with which he assisted. See United States v. Raymer, 876 F.2d 383, 390 ...