U.S. v. Young, 78-1944

• Decision Date: 28 February 1980
• Docket Number: No. 78-1944,78-1944
• Citation: 614 F.2d 243
• Parties: 80-1 USTC P 9223 UNITED STATES of America, Plaintiff-Appellee, v. Glenn O. YOUNG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 243

614 F.2d 243

80-1 USTC P 9223

UNITED STATES of America, Plaintiff-Appellee, v. Glenn O. YOUNG, Defendant-Appellant.

No. 78-1944.

United States Court of Appeals Tenth Circuit.

Argued Oct. 16, 1979.

Decided Jan. 18, 1980.

As Amended Jan. 30, 1980.

Rehearing Denied Feb. 28, 1980.

Hubert H. Bryant, U. S. Atty., Tulsa, Okla. (George Carrasquillo, Asst. U. S. Atty., Tulsa, Okla., on the brief), for plaintiff-appellee.

Glenn O. Young, pro se (Wesley R. Thompson, Sapulpa, Okla., on the brief), for defendant-appellant.

Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.

McWILLIAMS, Circuit Judge.

Glenn O. Young was convicted by a jury of having willfully and forcibly assaulted one Conrad Carson, an agent with the Internal Revenue Service, while the agent was engaged in the performance of his official duties, in violation of 18 U.S.C. § 111. Young was fined $3,000. He appeals the sentence thus imposed. We affirm.

Conrad Carson, an agent for the Internal Revenue Service, was assigned to audit Young's 1976 tax return. By both letter and telephone Carson contacted Young in an effort to arrange a mutually satisfactory time for him to start his audit of Young's tax return. Carson's efforts were unavailing. Accordingly, on May 8, 1978, Carson drove from his residence in Tulsa, Oklahoma to Sapulpa, Oklahoma, intending, if possible, to interview Young in the latter's law offices in Sapulpa. Carson had with him an Internal Revenue Service summons which was filled out, except for the date and Carson's signature. Carson's testimony was that if voluntary efforts were unsuccessful, he intended to serve Young with the summons.

According to Carson, he identified himself to Young as an agent of the Internal Revenue Service. Young then escorted Carson into his inner office. There Young refused to answer any questions and asked Carson to leave. An argument ensued, and, according to Carson, Young became loud and abusive. Carson then informed Young that he had a summons for him to appear and produce such records as were necessary for an audit. Carson then dated and signed the summons, and he left it on the edge of Young's desk. As Carson was leaving the office Young followed him a few steps, kicked Carson in the rear with his knee, and then struck Carson in the head with his fist.

The sequence of events is not really in dispute. The assault was corroborated by two of Young's own office employees. Indeed, Young in his Pro se closing argument stated that if he were guilty of anything it was that he didn't "kick him harder and quicker and longer."

At this stage of the proceedings the evidence must be viewed in a light most favorable to the party prevailing in the trial court, i. e., the Government. United States v. Butler, 446 F.2d 975, 978 (10th Cir. 1971). The evidence, as outlined above, clearly establishes an assault.

Young's Pro se brief is hard to follow, but it would appear to be his primary contention that at the time of the fracas Carson was not engaged in the performance of his official duties. Young seems to argue that the summons was not properly served on him, and that because of such Carson was not about his official duties at the time of the assault. We do not agree with this reasoning.

United States v. Heliczer, 373 F.2d 241 (2nd Cir.), Cert. denied, 388 U.S. 917, 87 S.Ct. 2133, 18 L.Ed.2d 1359 (1967) presents a fact situation quite analogous to the instant one. There the defendant was convicted of assaulting a federal narcotics...