U.S. v. Schrader

• Decision Date: 06 December 1993
• Docket Number: 92-3728,92-3936 and 92-3939,Nos. 92-3727,s. 92-3727
• Citation: 10 F.3d 1345
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles SCHRADER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lisa HIGH WOLF, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Clayton HIGH WOLF, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Shaun KEITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1345

10 F.3d 1345

UNITED STATES of America, Plaintiff-Appellee, v. Charles SCHRADER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Lisa HIGH WOLF, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Clayton HIGH WOLF, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Shaun KEITH, Defendant-Appellant.

Nos. 92-3727, 92-3728, 92-3936 and 92-3939.

United States Court of Appeals Eighth Circuit.

Submitted May 12, 1993.

Decided Dec. 6, 1993.

Scott D. McGregor, Rapid City, SD, argued, for Charles Schrader.

James R. Wefso, Rapid City, SD, argued, for Lisa High Wolf.

Robert M. Nash, Rapid City, SD, argued, for Clayton High Wolf.

Jerry Matthews, Hay Springs, NE, for Shaun Keith.

Diana J. Ryan, Rapid City, SD, argued, for U.S.

Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

LOKEN, Circuit Judge.

Charles Schrader, Lisa High Wolf, Clayton High Wolf, and Shaun Keith appeal their convictions for violating 18 U.S.C. Sec. 111, which punishes any person who "forcibly assaults, resists, opposes, impedes, intimidates, or interferes with" federal officers engaged in the performance of official duties. We reverse the convictions because the district court erred in instructing the jury that the adverb "forcibly" modifies only the verb "assaults," and not the other offense-defining verbs in the statute. We further conclude that the tribal officers in question were federal officers for purposes of Sec. 111, reject defendants' other contentions on appeal, and remand the case for a new trial.

I. Sufficiency of the Evidence.

To determine if the trial evidence was sufficient to convict, we must review that evidence in the light most favorable to the government. See United States v. LaChapelle, 969 F.2d 632, 633 n. 1 (8th Cir.1992). At 5:00 in the morning, Oglala Sioux tribal officers Richard Greenwald and John Long responded to the report of a disturbance at the Waln residence on the Pine Ridge Indian Reservation. A man and woman with visible injuries claimed they were attacked and beaten in their home by defendants, who had departed. Minutes later, the officers received word of another nearby disturbance. They investigated and found defendants in a yard near their parked car. Residents reported that defendants had just broken into the house and attacked its occupants.

Officer Greenwald told Clayton High Wolf that he was under arrest and attempted to handcuff him. High Wolf struggled, but Officer Greenwald succeeded in handcuffing him and pushed him into the back seat of the police car. Meanwhile, Officer Long told Shaun Keith that he was under arrest. When Keith attempted to flee, Officer Long held him. After placing Clayton High Wolf in the police car, Officer Greenwald came to assist in handcuffing Keith. At this point, Lisa High Wolf opened the back door of the police car where Clayton was seated, and Clayton began to get out. Officer Long released his hold on Keith, went to the police car and closed the rear door, and then returned to help Officer Greenwald pin Keith against defendants' car.

Lisa High Wolf now started defendants' car and, ignoring a command from Officer Greenwald, began to drive forward. The officers pulled Keith back and away from the car. Charles Schrader emerged from the car, pulled off his jacket, and started towards the officers. Officer Long released his grip on Keith and turned to face Schrader. Keith broke free and fled. Officer Greenwald pursued Keith on foot. Keith turned and screamed, "I am going to kill you. You fuckers are dead," and reached into his jacket as if to draw a weapon. When Officer Greenwald drew his revolver, Keith turned and ran away. Schrader got back into the car, and Lisa High Wolf drove away.

Two hours later, tribal police received a report that a man with a firearm had entered the High Wolf home. Police arrived and found Lisa High Wolf and Charles Schrader asleep in the basement. When told he was under arrest, Schrader struggled until the officers brandished a shotgun and told him to remain still. Lisa High Wolf was verbally abusive but submitted to arrest.

Defendants argue that this evidence was insufficient to convict them of violating Sec. 111. We disagree. Force is a necessary element of any Sec. 111 violation. However, that element may be satisfied by proof of actual physical contact, or by proof of "such a threat or display of physical aggression toward the officer as to inspire fear of pain, bodily harm, or death." United States v. Walker, 835 F.2d 983, 987 (2d Cir.1987). Under the relevant sufficiency standard--whether there was evidence from which the jury could rationally have found each defendant guilty beyond a reasonable doubt, see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)--we conclude that there was sufficient evidence to convict each defendant of forcibly assaulting, resisting, opposing, impeding, intimidating, or interfering with the tribal officers, or of aiding and abetting such a violation.

II. The "Forcibly" Instruction.

Although there was sufficient evidence to convict, we agree with defendants that their convictions must be reversed because the district court erred in construing the word "forcibly" in Sec. 111. The court discussed this issue at length during the jury instructions conference, first with defense counsel:

MR. MATTHEWS [Counsel for Keith]: In my proposed [instructions] I proposed a definition for the term "forcibly assaults" and then also "forcibly" in the next instruction.

THE COURT: Is it your position that under the statute the word "forcibly" describes all of the other acts set forth in the statute, that is, forcibly assaults, forcibly resisted, forcibly opposed, forcibly impeded, forcibly intimidated, forcibly interfered?

MR. MATTHEWS: Yes, Your Honor, it is.

THE COURT: Do you have any authority for that?

MR. MATTHEWS: Long v. U.S. [199 F.2d 717 (4th Cir.1952) ];

and then with the prosecutor:

THE COURT: ... So tell me why, again, why that word "forcibly" should follow the definition of "assault"?

MS. RYAN [the prosecutor]: Because that is where the definition of forcibly applies is in the forcible assault.

THE COURT: It's your position that the word "forcibly" is not subsumed to describe the other acts which are included in the statute, correct?

MS. RYAN: Yes, Your Honor.

* * * * * *

THE COURT: Your point is that "forcibly" applies only to the assault?

MS. RYAN: Right.

The court unequivocally adopted the prosecutor's position:

THE COURT: In case there should be some misunderstanding of that, I believe the statute is clear that you can forcibly assault, but you do not have to forcibly resist, or forcibly oppose, or impede, intimidate or interfere in order to violate the statute.

Over defense objections, the district court then charged the jury that an element of the crime was, "That a defendant forcibly assaulted, or resisted, or opposed, or impeded, or intimidated or interfered with Richard Greenwald or John Long."

This charge was ambiguous and, standing alone, might have obscured the issue that counsel had debated at the instruction conference. However, the prosecutor clarified the district court's interpretation of the statute when she stated at the outset of her closing argument:

The forcibly-forcible element goes only to the assault charge here. There is no requirement that the government prove that the resisting, opposing, intimidating, interfering, or impeding were forcible. Although we have evidence that there was forcible resisting and other forcible interference, we don't have to prove the element of force on those issues, but we do have to prove that element on the assault.

The district court's interpretation of the statute conflicts with our decision in United States v. Camp, 541 F.2d 737 (8th Cir.1976). In Camp, defendant was convicted under an indictment charging that he "wilfully, knowingly, and unlawfully resisted, opposed, impeded, intimidated and interfered with" a postal inspector. Though assault was not charged, we reversed the conviction because "[t]he word 'forcibly' does not appear in the indictment, nor does any word with a similar import." 541 F.2d at 740. Likewise, in Long v. United States, 199 F.2d at 719, which we cited favorably in Camp, the court compared the text of Sec. 111 with the text of its predecessor statute and concluded that "the adverb 'forcibly' was intended to modify each of the verbs which succeeded it." See also Ladner v. United States, 358 U.S. 169, 176 & n. 4, 79 S.Ct. 209, 213 & n. 4, 3 L.Ed.2d 199 (1958); United States v. Bamberger, 452 F.2d 696, 699 (2d Cir.1971), cert. denied, 405 U.S. 1043, 92 S.Ct. 1326, 31 L.Ed.2d 585 (1972).

The government contends that this error was harmless, like the conflicting or confusing instructions on the issue of intent under Sec. 111 in United States v. Sanchez, 914 F.2d 1355, 1359 (9th Cir.1990), cert. denied, 499 U.S. 978, 111 S.Ct. 1626, 113 L.Ed.2d 723 (1991). However, the element of force was a crucial issue in this case. ¹ Although there was some evidence of an assault by each defendant, their actions could much more readily be characterized as "resisting, opposing, impeding, intimidating, or interfering with" the tribal officers. Shaun Keith admitted that he ran from the officers when they tried to apprehend him. Lisa High Wolf admitted that she opened the back door of the police car where her brother was seated and later drove away from the scene with Schrader. Clayton High Wolf admitted that he pushed his hand down when Officer Greenwald tried to handcuff him. Each defendant put an innocent gloss on his or her conduct. But with the element of force eliminated, the jury could have believed the defendants' explanations and still have convicted them because they non-forcibly impeded or resisted the tribal officers.

"Whether a person has opposed the efforts of federal agents with sufficient force...