U.S. v. Walker

• Citation: 835 F.2d 983
• Decision Date: 22 December 1987
• Docket Number: D,No. 205,205
• Parties: UNITED STATES of America, Appellee, v. Albert Reginald WALKER, Defendant-Appellant. ocket 87-1189.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 983

835 F.2d 983

UNITED STATES of America, Appellee, v. Albert Reginald WALKER, Defendant-Appellant.

No. 205, Docket 87-1189.

United States Court of Appeals, Second Circuit.

Argued Sept. 23, 1987.

Decided Dec. 22, 1987.

Andrew C. McCarthy, Sp. Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. for the S.D. of New York, Kerri L. Martin, Asst. U.S. Atty., New York City, on brief), for appellee.

Robert E. Precht, New York City (The Legal Aid Society, Federal Defender Services Unit, New York City, on brief), for defendant-appellant.

Before LUMBARD, OAKES, and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Albert Reginald Walker appeals from a final judgment entered in the United States District Court for the Southern District of New York after a jury trial before John E. Sprizzo, Judge, convicting Walker of one count of forcibly assaulting, intimidating, and interfering with a federal probation officer, in violation of 18 U.S.C. Sec. 111 (1982). Walker contends that there was insufficient evidence to sustain the conviction, and that the prosecutor's rebuttal summation prejudiced his right to a fair trial. We affirm the judgment of the district court.

I. BACKGROUND

A. The Evidence

Taken in the light most favorable to the government, the evidence at trial showed the following. In 1986, Walker was nearing the end of a five-year term of probation imposed on him following a prior federal felony conviction. During his probationary term, he had violated the conditions of his probation by submitting urine samples that indicated he was using drugs and by failing to report for scheduled appointments with his probation officer. The probation officer, Donald Freeman, reported these violations to Judge John M. Cannella of the United States District Court for the Southern District of New York, and in September 1986 Walker admitted the violations before Judge Cannella. On October 15, 1986, Judge Cannella sentenced Walker to an 18-month prison term, the term originally proposed by the government for his previous offense, but did not require him to surrender until October 17.

After being sentenced by Judge Cannella on October 15, Walker left the courthouse and went across the street to the Probation Office and asked to see Freeman. Walker refused to identify himself or fill out a visitor's slip, and, without authorization, he entered the corridor leading to the probation officers' offices, opened the door to Freeman's office, and walked in unannounced. He asked why Freeman had reported the probation violations and began to use abusive language. Freeman asked him to leave, but Walker refused. He stood over Freeman, who was sitting at the desk, and stated, "I am going to get you outside after work. You are going to pay for what you did," gesturing at Freeman with his thumb and index finger in a way commonly thought to symbolize a gun.

Freeman testified that he did not know what Walker was about to do, so he got out of his chair and left his office. Walker followed Freeman into the corridor and continued his harangue. Reiterating, "I am going to get you for what you did," he stood about one foot away from Freeman and began to remove his jacket. Other probation officers heard the commotion and came into the corridor. Officer Bernard Ray testified that Walker was then within inches of Freeman and was "very irate, loud and boisterous." As Freeman and Walker moved toward the exit, Walker became more abusive and began shouting obscenities. Walker became so irate that Ray felt he had to step between the two men; Walker was so close to Freeman that when Ray stepped between them he made physical contact with both. After being separated from Freeman, Walker was escorted to the elevators by other probation officers, and as he was leaving he stated that he would "see [Freeman] on the street."

B. The Summations

In summation, defense counsel Ruth Chamberlin noted that, in order to prove forcible assault, intimidation, or interference with a probation officer in violation of Sec. 111, the government had the burden of proving force sufficient to make a reasonable person fear immediate bodily harm. She argued that that burden had not been met because the government had not shown that Freeman himself or the other probation officers involved had actually feared violence from Walker. Chamberlin pointed out that neither Freeman nor Ray had testified explicitly that he feared Walker was about to become physically violent.

She emphasized that neither witness had been asked by the prosecutor whether he actually feared immediate use of physical force by Walker, and she argued repeatedly that the reason the question had not been posed was that "the honest answer" would have been that the witness was not afraid.

Special Assistant United States Attorney Andrew C. McCarthy, in his rebuttal summation, stressed that defense counsel too had failed to ask Ray and Freeman whether they feared immediate harm. He began by stating that if defense counsel really believed that the witnesses did not fear physical violence from Walker, "wouldn't that make a great case for her?" Chamberlin immediately objected, stating, "I have no burden of proof in this case." The court overruled the objection, stating, "You have no burden of proof, but you commented on his failure to ask a question. I guess he can comment on your failure to ask a question." McCarthy went on to emphasize defense counsel's failure to ask the questions:

Wouldn't it have been easy? You saw her ask Mr. Ray some questions. Wouldn't it have been easy for her if she really thought that was the answer to say to Mr. Ray, "Isn't it a fact that you didn't believe that there was any threat of a fight?", and get the answer that she says she expected?

As to the cross-examination of Freeman, McCarthy argued that defense counsel had asked many questions about Freeman's life history but none about the incident in question. Chamberlin objected again, stating that Walker had the right to rely on the government's failure to prove its case. The trial judge again overruled the objection, stating that the government had a perfect right to comment on what the defense did or did not do in cross-examination. McCarthy continued:

... Not one single question about what went on in there, nothing about threats, nothing about gestures, nothing about other probation officers coming to his aid, nothing about whether he was assaulted, intimidated or interfered with. Nothing. It wasn't like she couldn't ask him those questions.

In fact, we all sat here for a long time while she asked him an awful lot of questions, but nothing, ladies and gentlemen, about the evidence.

His testimony about what went on in that office is unchallenged. The evidence of the offense charged was simply not confronted during her cross-examination of the government's most important witness.

In charging the jury, Judge Sprizzo included the traditional instructions as to the government's burden of proving each element of its case beyond a reasonable doubt. He ended by reiterating that the defendant bore no burden whatever:

I think I told you, but if I didn't you should understand that under the law, the defendant doesn't have any burden to do anything. I thought I said that to you. He does not have to produce any evidence; does not have to do anything and can rely--and he has a constitutional right to rely on the failure of the government to prove his case. That is a constitutional right he has in this case and any criminal case.

The jury found Walker guilty, and Judge Sprizzo sentenced him to five years' probation, to follow the 18-month prison term imposed by Judge Cannella. This appeal followed.

II. DISCUSSION

On appeal, Walker contends principally that (1) the evidence was insufficient to support a conclusion that his behavior would have led a reasonable person to fear immediate bodily harm, and (2) the government's rebuttal summation impermissibly shifted the burden of proof to the defense. Although the case was close and the rebuttal summation was not unflawed, we find no basis for reversal.

A. Sufficiency of the Evidence

Section 111 of 18 U.S.C. provides, in pertinent part, that [w]hoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.

Probation officers are among the persons designated in 18 U.S.C. Sec. 1114 (1982).

As judicially interpreted, the term "forcibly" in Sec. 111 does not mean that force must actually have been used; it is sufficient if force was threatened. See, e.g., United States v. Giampino, 680 F.2d 898, 902 (2d Cir.1982); United States v. Mathis, 579 F.2d 415, 418 (7th Cir.1978). Nor need the defendant actually have touched the officer; the "forc[e]" element of Sec. 111 may be satisfied by proof that there was such a threat or display of physical aggression toward the officer as to inspire fear of pain, bodily harm, or death. See United States v. Bamberger, 452 F.2d 696, 699 n. 5 (2d Cir.1971), cert. denied, 405 U.S. 1043, 92 S.Ct. 1326, 31 L.Ed.2d 585 (1972). If the "forc[e]" element is to be established by proof of threats rather than by proof of actual touching, the threat must have been of immediate harm. Thus, we have noted that a mere " 'implied threat of the use of force sometime in the indefinite future' " would not suffice to violate Sec. 111. United States v. Bamberger, 452 F.2d at 699 (quoting United States v. Glover, 321 F.Supp. 591, 595 (E.D.Ark.1970)).

Congress's purpose in enacting Sec. 111 was both to deter harm to certain federal officials and to deter interference with their law enforcement activities. See United States v. Feola, 420 U.S. 671, 678-83, 95 S.Ct. 1255, 1260-63, 43 L.Ed.2d 541 (1975). In order to protect the law...