U.S. v. Varkonyi

• Decision Date: 20 May 1981
• Docket Number: No. 80-1596,80-1596
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas L. VARKONYI, Defendant-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 453

645 F.2d 453

UNITED STATES of America, Plaintiff-Appellee, v. Thomas L. VARKONYI, Defendant-Appellant.

No. 80-1596.

United States Court of Appeals, Fifth Circuit.

Unit A

May 20, 1981.

Robert R. Harris (court-appointed), Raymond C. Caballero, Pearson, Caballero & Warach, El Paso, Tex., for defendant-appellant.

LeRoy M. Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before CHARLES CLARK and GEE, Circuit Judges, and SPEARS, ^* District Judge.

SPEARS, District Judge:

Thomas L. Varkonyi appeals from jury convictions stemming from charges in a three count indictment. Count I charged him with forcibly assaulting and interfering with an Immigration and Naturalization Service (INS) officer engaged in the performance of his official duties, in violation of 18 U.S.C. § 111. Counts II and III charged him with willfully and knowingly concealing, harboring and shielding two aliens, in violation of 8 U.S.C. § 1324(a). The jury returned verdicts of guilty on all three counts. We affirm.

Varkonyi's convictions were based on the following sequence of events. On March 13, 1980, Border Patrol Agents Barragan and Gomez were proceeding to make a routine check of the El Paso railroad yards; the agents were in uniform and driving a marked INS van. En route to the railroad yards, they passed Varkonyi's scrap metal yard, where they saw several men unloading a truck. As the van drew near, one of the men in the scrap metal yard yelled, "Immigration is coming", and the men jumped off the truck and attempted to hide behind a table in the back of that yard. The agents stopped the van and called to the men, who were visible through the fence, to come out and talk with them. Receiving no answer, Agent Barragan attempted to enter the yard to ascertain the immigration status of the workers; however, his entry was blocked at the open gate by Varkonyi, who shoved him out of the yard and threatened to call the police. Seeing the above confrontation, the workers left their hiding place and decided to voluntarily surrender. At this time, Varkonyi admonished the workers to stay put, and then told the agents these men had proper documentation.

Following their surrender, Agent Barragan gave the four aliens permission to change clothes, and informed Varkonyi that he would have to accompany the men into the warehouse while they changed. Varkonyi permitted Officer Barragan and the aliens to enter the yard, but at the warehouse he shoved Barragan away, and managed to lock him out of the building. Once inside, Varkonyi again instructed the workers not to surrender; however, three of the four workers returned themselves to the agent's custody. The fourth man escaped and was never apprehended.

Upon an investigation of the immigration status of the three workers, one was found to be a juvenile who was released to return to Mexico; the other two were detained and are named in Counts II and III of the indictment. As to the men named in the indictment, both had illegally entered the United States and neither had appropriate documents to reside or work here. ¹ The men were employed by Varkonyi six days a week, sleeping in his warehouse, and as part of their agreement with him, they returned to Mexico on Saturday nights. Varkonyi knew the men were residing and working in the United States unlawfully, and, in fact, had offered to help them obtain proper papers. ²

Following the return of verdicts of guilty on each count of the indictment, this appeal was initiated.

I. Validity of the Indictment

Initially, Varkonyi contends that the assault and interference charge of the indictment is defective in several respects, primarily in that it fails to charge an offense. While this objection was not raised at the trial level, it may be examined for the first time on appeal. United States v. Meacham, 626 F.2d 503, 509 (5th Cir. 1980); Fed.R.Crim.P. 12(b)(2), (f). He asserts that an essential element was omitted in that the charge neglects to identify Barragan as a federal officer, or allude to Section 1114 which enumerates the officers protected by statute, and, therefore, the charge is fatally defective. ³

Recognizing that an indictment must allege each and every element of an offense to pass constitutional muster, the law does not compel a ritual of words. United States v. Purvis, 580 F.2d 853, 857 (5th Cir. 1978), cert. denied, 440 U.S. 914, 99 S.Ct. 1229, 59 L.Ed.2d 463 (1979). The validity of an indictment is governed by practical, not technical considerations. United States v. Goodman, 605 F.2d 870, 885 (5th Cir. 1979); United States v. Camp, 541 F.2d 737, 740 (8th Cir. 1976). Accordingly, the appropriate test in this instance is not whether the indictment might have been drafted with more clarity, but whether it conforms to minimal constitutional standards. United States v. Haas, 583 F.2d 216, 219 (5th Cir. 1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1788, 60 L.Ed.2d 240 (1979); United States v. London, 550 F.2d 206, 211 (5th Cir. 1977).

In the instant case, a plain reading of the indictment would have informed the defendant that he had been charged with assault and interference against a man, recognized by him on the day of the incident as a Border Patrol agent, who was engaged in the performance of his official duties, in violation of 18 U.S.C. § 111. The citation of this statute in the charge served the dual purpose of affirmatively showing federal jurisdiction as well as directing the reader to 18 U.S.C. § 1114, wherein the reader would find a listing of the particular federal officers protected by the statute. This court has ruled that an indictment is sufficient if it fairly informs the defendant of the charge against which he must defend, and enables him to plead an acquittal or conviction in bar of future prosecutions. United States v. Goodman, supra, at 885. It is our opinion that the assault and interference charge fulfills the constitutional requisites and is sufficiently certain to charge an offense. See United States v. Mullens, 583 F.2d 134, 141 (5th Cir. 1978).

Varkonyi additionally challenges the assault charge on the basis that it lacked specificity. This argument does not concern the failure to charge an offense and was therefore waived by his failure to raise it in the district court. See United States v. Gerald, 624 F.2d 1291, 1300 (5th Cir. 1980) (citing United States v. Freeman, 619 F.2d 1112, 1118 (5th Cir. 1980)); Fed.R.Crim.P. 12(b)(2), (f).

Varkonyi also challenges the sufficiency of the harboring counts, alleging that they are defective because the words "from detection" were omitted. ⁴ It is our opinion that this argument is frivolous because the omitted language neither adds to nor detracts from the overall import of the charge. Implicit in the wording "harbor, shield, or conceal", is the connotation that something is being hidden from detection, and, therefore, the absent wording was mere surplusage.

II. Constitutionality of 18 U.S.C. § 111

While Varkonyi did not attack the constitutionality of this statute at the trial level, he contends on appeal that it is impermissibly vague and overbroad. He asserts that the statute lacks ascertainable standards of guilt so as to give reasonable notice of the proscribed conduct, and that the statute could be applied in some circumstances which contravene rights protected by the first amendment.

Addressing the vagueness issue, we find the purpose of 18 U.S.C. § 111 as twofold. The statute was designed to protect both federal officers and federal functions. United States v. Feola, 420 U.S. 671, 679, 95 S.Ct. 1255, 1261, 43 L.Ed.2d 541 (1975). The Tenth Circuit has ruled that this federal assault statute is not unconstitutionally vague, but is sufficiently certain to give a person of ordinary intelligence fair notice that his contemplated activity is forbidden. United States v. Linn, 438 F.2d 456, 458 (10th Cir. 1971) (construing 18 U.S.C. § 111); cf., United States v. Dupree, 544 F.2d 1050, 1052 (9th Cir. 1976) (upholding a similar assault statute, 18 U.S.C. § 113). Being in substantial agreement with the decisions in the other circuits, we conclude that Section 111 meets the test of definiteness.

The second argument advanced by Varkonyi is that the statute is overbroad. Here, he contends that the statute may be enforced in such a fashion as to infringe on constitutionally protected rights. Cf., Norwell v. Cincinnati, 414 U.S. 14, 16, 94 S.Ct. 187, 188, 38 L.Ed.2d 170 (1973) (one cannot be punished for non-provocatively voicing an objection to the authority of a police officer). Nothing in this case suggests that Varkonyi was non-provocatively objecting to Barragan's authority, but instead, the facts reflect that his abusive language and physical conduct went beyond the exercise of constitutionally protected rights. As a result, Varkonyi lacks standing to test the constitutionality of this statute on the grounds that it impliedly might be unconstitutional if applied to other persons or other situations. United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960). See generally United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508 (1930).

III. Constitutionality of 8 U.S.C. 1357(a)(3)

Varkonyi raises another issue of constitutionality concerning this statute's blanket authorization for warrantless entries onto private property, except dwellings, if the property is within twenty-five miles from an external boundary. See 8 U.S.C. § 1357(a)(3). Essentially, he contends that this type of entry violates the warrant clause of the Fourth Amendment. See generally Almeida-Sanchez v. United States, 413 U.S. 266, 273, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973); United States v. Brignoni-Ponce, 422 U.S. 873, 877-883, 95 S.Ct. 2574, 2578-2581, 45 L.Ed.2d 607 (1975). See also Marshall v. Barlows, Inc., 436 U.S. 307, 311, 98 S.Ct. 1816, 1819, 56...