United States v. Bamberger, 181

• Decision Date: 10 December 1971
• Docket Number: Dockets 71-1520,71-1521,182,No. 181,185,71-1530.,181
• Citation: 452 F.2d 696
• Parties: UNITED STATES of America, Appellee, v. Allen BAMBERGER et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

452 F.2d 696 (1971)

UNITED STATES of America, Appellee, v. Allen BAMBERGER et al., Defendants-Appellants.

Nos. 181, 182, 185, Dockets 71-1520, 71-1521, 71-1530.

United States Court of Appeals, Second Circuit.

Argued October 6, 1971.

Decided December 10, 1971.

Certiorari Denied April 3, 1972.

Robert Hermann, Robert Kasanof, The Legal Aid Society, New York City, for appellant Bamberger.

David Blackstone, New York City, for appellant Crapps.

Abraham Solomon, New York City, for appellant Simmons.

Gerald A. Feffer, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for the Southern District of New York, William B. Gray, Asst. U. S. Atty., of counsel), for appellee.

Before FRIENDLY, Chief Judge, and WATERMAN and SMITH, Circuit Judges.

Certiorari Denied April 3, 1972. See 92 S.Ct. 1326.

J. JOSEPH SMITH, Circuit Judge:

Appellants were found guilty after a seven-day jury trial before Judge Irving Ben Cooper of the United States District Court for the Southern District of New York of unlawfully, wilfully and knowingly forcibly assaulting, resisting, opposing, impeding, intimidating and interfering with an officer and employee of the Federal Detention Headquarters in Manhattan while he was engaged in the performance of his official duties, in violation of 18 U.S.C. §§ 111 and 2. A fourth defendant, Clifford Northern, was found not guilty. Judge Cooper sentenced Allen Bamberger and Donald Crapps to terms of eighteen months imprisonment, to run consecutively to the federal sentences each is presently serving. Frank Simmons was sentenced to one year imprisonment and has completed serving that term. The three appeal from the judgment of conviction, claiming that the court erroneously defined "forcibly" in his instructions and thereby misled the jury as to one element of the crime. We affirm.

The criminal charges grew out of an incident that occurred in the maximum security section of the Federal Detention Headquarters on West Street in New York City in April, 1970. Four maximum security cell groups are located on one side of the corridor dividing the floor; two large dormitories and a TV room face them across the hall. The government presented its case through the testimony of five correctional officers from the Headquarters. They testified that at about 3:30 in the afternoon of April 2, Officers Leonard Benedetti and Robert Hafer were moving maximum security prisoners back to their cells from the TV room. Simmons, Crapps and Northern were "milling around" in the hall, waiting for Bamberger to return from a visit.¹

Bamberger then appeared at one end of the corridor, outside a locked gate, with an officer and another prisoner. Simmons and Crapps, who had been discussing cell assignments with the guards, refused to go to their cells until Bamberger was let into the hall. Bamberger then allegedly shouted at them to get the keys and make the moves themselves. After Crapps made a "halfhearted attempt" to reach for Officer Benedetti's keys, the officers moved toward the end of the corridor at which Bamberger was not posted. Benedetti left the cell block, but Simmons blocked Hafer's exit and forced the officer against the cell bars. The government witnesses stated that Crapps then jammed a two foot length of broken broom handle, produced from his cell, under Hafer's left arm. He did not injure the guard.

When Hafer refused on request to part with his keys, Simmons removed them from his pocket and gave them to Crapps, who let Bamberger into the hallway. Bamberger unlocked two of the cells, leaving the keys in one lock. Hafer retrieved them and departed. The prisoners all returned to cells, although not necessarily those to which they were assigned. A group of officers arrived and bathed the inmates in Mace or tear gas.

The defense presented five witnesses, all of whom had been inmates in the maximum security section at the detention center on April 2. They testified that nothing out of the ordinary occurred. Inmates were switching cells, as was common practice, and the guards did not object. No prisoner had keys or broomstick handles.² No one heard Bamberger shout about the keys. Northern was the only defendant to testify, and his version of events was similar to that of the other defense witnesses.³

Judge Cooper delivered a lengthy charge to the jury. In discussing the elements of the crime, he defined "forcibly" as follows:

What does that word "forcibly" mean as used in the statute? It means what is generally accepted as the meaning of that word.

Congress has specifically prescribed force as an essential element of the crime. If there is force, no matter how slight, even touching the hand of a correctional officer, who at the time was engaged in the performance of his duty, and touching him knowingly and wilfully and with the intention to impede, interfere, or, or, or any one of those, that would be sufficient. That slight motion under law is sufficient to meet the statutory term "forcibly."

. . . Even if there were no taking of the key and there was a touching of the person of Hafer, . . . that is a sufficient element of force which the law condemns.

And at another point in the charge he said:

You know the full significance of the old expression "Don\'t you dare lay a finger on him." That is the type of prohibited behavior contemplated by this statute. This becomes imperative because of the environmental situation generally prevailing in such penal institutions.

The defense objected to this portion of the charge, claiming that the court conveyed the impression that mere touching was a talisman for conviction under the statute. They claimed that by stating that a technical assault violated the statute, the court rendered the word "forcible" superfluous.

Section 111 of Title 18, under which appellants were charged, was enacted in essentially its present form in 1934. It prohibits forcible assault, resistance, or interference with certain enumerated federal officials, including officers in penal and correctional institutions, engaged in the performance of their official duties. The legislative history of section 111 is sparse, and there is no reference to the intended meaning and scope of its language. See S. Rep. No. 535, 73d Cong., 2d Sess. (1934); H.R. Rep. No. 1455, 73d Cong., 2d Sess. (1934); 78 Cong.Rec. 8126-27 (1934). However, it is a general rule of statutory construction that words in statutes should not be construed as excess verbiage. II Sutherland, Statutory Construction ¶ 4705 (3d Ed. 1943). The word "forcibly" in section 111 ought to limit the proscribed acts to fewer than would fit the definition of the unmodified verbs alone.

Appellants argue first that physical violence or a substantial use of physical force is required to violate the statute. While they may be correct in their contention that most reported cases under this statute do involve a clear use of physical force,⁴ they cite no case or authority which holds that the statute is to be applied only when physical force is exerted.

Appellants concede, in fact, that the use of force does not necessarily entail physical contact.⁵ As a district court stated in a charge approvingly cited by the Fifth Circuit:

Thus a person who, in fact, has the present ability to inflict bodily harm upon another, and wilfully threatens or attempts to inflict bodily harm upon such person, may be found

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