U.S. v. Reid
| Decision Date | 24 April 1975 |
| Docket Number | D,772,Nos. 771,s. 771 |
| Citation | 517 F.2d 953 |
| Parties | UNITED STATES of America, Appellee, v. Daniel REID and Theodore E. Thomas, Jr., Defendants-Appellants. ockets 74-2598, 74-2599. |
| Court | U.S. Court of Appeals — Second Circuit |
Ronald Gene Wohl, New York City, for defendant-appellant Reid.
E. Thomas Boyle, Fed. Defender Services, Legal Aid Society, New York City (William J. Gallagher, and The Legal Aid Society, Fed. Defender Services Unit, New York City, of counsel), for defendant-appellant Thomas.
Steven A. Schatten, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. for the Southern District of New York, and John D. Gordan, III, Asst. U. S. Atty., of counsel), for appellee.
Before FRIENDLY and MANSFIELD, Circuit Judges, and BARTELS, District Judge. *
About four o'clock in the afternoon of August 1, 1974, Special Agent Patrick Shea of the Drug Enforcement Administration (DEA) went to a barbershop in the Bronx to get a haircut during a late lunch period. Five minutes later, hearing a commotion in an immediately adjacent liquor store, he rose from the barber's chair and, still clad in his gown, entered the store, but not before taking out his DEA badge, clearly displayed in its case, with one hand and drawing his Government-issued revolver with the other. He observed defendant Reid 1 on the floor beating the proprietor, John McArdle, with a broken bottle. 2 Shea shouted "Freeze, police." Reid stood up and faced him. Shea then became aware of the presence in another corner of the store of defendant Thomas, whom he also told to "freeze." Instead, while Shea's attention was fixed on Reid, Thomas succeeded in crossing the room and, holding a long-barreled automatic pistol, got the drop on Shea, directed him to surrender his revolver, took this and Shea's DEA badge, and ordered Shea to get down on the floor. Shea complied but, while on his stomach, kept his attention focused on Thomas. Thomas then shot Shea in the right arm, shattering the radial bone. When Shea cried "You shot me", scarcely news to Thomas, the latter answered "I am going to kill you." Thomas fired another shot, happily without the consequence desired, and waited for Reid to join him at the front of the store. Reid and Thomas then fled, the latter leaving his eye-glasses which were later identified by an optician and his technician, who had issued two pairs of glasses to Thomas, as being in all respects similar to those issued. Despite his serious injury, Shea attempted to pursue on foot but Thomas fired two shots at him, forcing him to seek cover, and the two men entered a Buick station wagon, the license plate number of which Shea was able to observe and recall. They drove off at high speed, striking another vehicle in attempting a U-turn, with Thomas at the wheel. Shea rejoined the pursuit in his unmarked DEA automobile but was unable to regain sight of them and sought medical attention. The Buick station wagon was later discovered in Manhattan and investigators were able to lift several latent fingerprints from it which upon analysis turned out to be those of Thomas. Three days later Reid and Thomas were apprehended in Ohio in a Pontiac which was stolen, according to a garage attendant, by Reid and an accomplice on July 29, 1974. According to the arresting officer, Reid threw a revolver, identified as the one stolen from Shea, out of the driver's window.
The indictment, in the District Court for the Southern District of New York, charged Reid and Thomas in seven counts with assaulting a federal officer with a deadly weapon, a revolver (18 U.S.C. § 111) (Count One); the wounding of Special Agent Patrick Shea, as lawful custodian of Government property in effecting a robbery of property of the United States, namely, a revolver (18 U.S.C. § 2114) (Count Two); unlawful use of a firearm in the commission of a federal felony (18 U.S.C. § 924(c)) (Count Three); robbery of property of the United States (18 U.S.C. § 2112) (Count Four); theft of Government property valued in excess of $100 (18 U.S.C. § 641) (Count Five); transportation of a stolen firearm in interstate commerce (18 U.S.C. §§ 922(i), 924(a)) (Count Six); and transportation of a stolen motor vehicle in interstate commerce (18 U.S.C. § 2312) (Count Seven). After trial before Judge Conner and a jury, the jury convicted on all counts except Count Five, on which they acquitted, apparently because of doubt as to value of the stolen Government property. Judge Conner imposed concurrent prison sentences, as follows:
Ried Thomas
(in years) (in years)
Count 1 6 8
Count 2 25 25
Count 3 6 8
Count 4 3 3
Count 6 2 2
Count 7 2 2
Bail was continued and this appeal followed.
We may as well proceed directly to the defendants' attack on Count Two 3 on the basis that § 2114 is limited to offenses having a postal nexus. After this case was argued, we sustained that contention in United States v. Rivera, 513 F.2d 519, 531-532 (2 Cir. 1975), agreeing with the concession of the Solicitor General in United States v. Hanahan, 442 F.2d 649 (7 Cir. 1971), vacated and remanded for reconsideration in light of Solicitor General's position, 414 U.S. 807, 94 S.Ct. 169, 38 L.Ed.2d 43 (1973), and the decision in United States v. Fernandez, 497 F.2d 730, 739-40 (9 Cir. 1974). See also United States v. Spears, 145 U.S.App.D.C. 284, 449 F.2d 946, 951-54 (1971).
Further research on our part has made the correctness of that view even clearer. At the time of the 1935 amendment to § 2114, Act of August 26, 1935, ch. 694, 49 Stat. 867, which added the phrase "money or other property of the United States" to "mail matter" in 18 U.S.C. § 320 (1934 ed.), § 320 stood in the portion of the Criminal Code, then Chapter 8, entitled Offenses Against Postal Service (Code of Laws of the United States of America in Force January 3, 1935). Its predecessors had been similarly organized in codifications having the force of positive law. See Act of March 4, 1909, An Act To codify, revise, and amend the penal laws of the United States, ch. 321, § 197, 35 Stat. 1126 (part of Chapter Eight, Offenses Against the Postal Service); Rev.Stat. §§ 5472, 5473 (1878) (). The 1935 amendment, H.R. 5360, 74th Cong., 1st Sess. (1935), came in response to a 1933 request from the Postmaster General and was handled in the House by the Committee on the Post Office and Post Roads, see H.R.Rep. No. 582, 74th Cong., 1st Sess. (1935), and in the Senate by the Committee on Post Offices and Post Roads, see Sen.Rep. No. 1440, 74th Cong., 1st Sess. (1935). Despite the generality of the language in the amendment and in the titles and language of the committee reports, no one would have entertained any doubt of the limited scope of § 320 if it had been allowed to remain in the chapter of the Criminal Code where Congress had placed it. 3a And remain it did for a period of years in codifications which, though unofficial, were widely used. See 18 U.S.C. § 320 (); 18 U.S.C. § 320 (1940 ed.); 18 U.S.C. § 320 (1946 ed.). The Reviser's transfer of § 320 in 1948, Act of June 25, 1948, ch. 645, 62 Stat. 797, to Chapter 103, Robbery and Burglary, where it now appears as § 2114, 4 with what were characterized as "(m)inor changes . . . in phraseology," did not expand the meaning Congress had entertained in 1935. Although constituting positive law, "(t)he 1948 Revision was not intended to create new crimes but to recodify those then in existence." Morissette v. United States, 342 U.S. 246, 266-69 n. 28, 72 S.Ct. 240, 253, 96 L.Ed. 288 (1952). 5
The prosecution now has cause to regret its error in including Count Two in the superseding indictment since the judge might well have imposed higher sentences on other counts if he had known the conviction on Count Two with the mandatory 25 year sentence was invalid. But the difficulty was of the Government's own making in that the draftsman of the superseding indictment did not follow or, as we gathered at argument, did not know of the Solicitor General's proper concession in Hanahan and is beyond our power to remedy.
The most interesting and important question raised is whether Agent Shea was assaulted "while engaged in or on account of the performance of his official duties", 18 U.S.C. § 111, as charged in Count One.
Before dealing with that issue, we must pause over a point which, although not raised by appellants, has come to our attention as a result of our study of this appeal. Since the point goes to the basic question whether Count One charged the commission of a crime and, if not now disposed of, will almost certainly become the basis for a proceeding under 28 U.S.C. § 2255 or F.R.Cr.P. 35, we think it best to decide it now. See United States v. Rivera, supra, 513 F.2d at 531-532.
Instead of accepting the proposal of Attorney General Cummings in 1934 6 to make an assault on "any civil official, inspector, agent, or other officer or employee of the United States" a federal crime, H.R. Rep. No. 1455, 73d Cong., 2d Sess. 1 (1934), Congress adopted the practice of limiting the offense to assault, etc., upon specified categories of federal officers. The pattern, established in the Act of May 18, 1934, ch. 299, 48 Stat. 781, has been the backhanded one of listing these categories in a section, now 18 U.S.C. § 1114, making their killing a homicide punishable in the same way as homicides as defined in other sections, now §§ 1111 and 1112, and then limiting the assault statute, § 111, to them. 7 Difficulty has arisen recently when executive reorganization plans have transferred a function from a category named in § 1114 to a newly...
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