United States v. Frizzi
| Decision Date | 30 January 1974 |
| Docket Number | No. 73-1131.,73-1131. |
| Citation | 491 F.2d 1231 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gaetano FRIZZI, Defendant-Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Joseph C. Delcore, Everett, Mass., with whom Alfred Paul Farese, Everett, Mass., was on brief, for appellant.
Thaddeus B. Hodgdon, Atty., Dept. of Justice, with whom James N. Gabriel, U.S. Atty., Jeffrey M. Johnson, Sp. Atty., Boston Strike Force, Boston, Mass., and John J. Robinson, Atty., Dept. of Justice, were on brief, for appellee.
Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.
With this case we hope to complete our coverage of 18 U.S.C. § 111, the statute conferring federal jurisdiction over prosecutions for assaulting or otherwise impeding certain federal officers while in the performance of their duties, most recently discussed in United States v. Perkins, 1 Cir., 1973, 488 F.2d 652. As we there indicated, the statute has several purposes. One is to punish deliberate forcible interference even when no other misconduct is involved. See Finn v. United States, 9 Cir., 1955, 219 F.2d 894, cert. denied 349 U.S. 906, 75 S.Ct. 583, 99 L.Ed. 1242; compare Long v. United States, 4 Cir., 1952, 199 F.2d 717. A more commonly invoked objective is simply to afford the federal officer, engaged in performing his duties, the protection of the federal court when a common law offense is committed against him. E. g., United States v. Langone, 1 Cir., 1971, 445 F.2d 636, cert. denied 404 U.S. 915, 92 S.Ct. 226, 30 L.Ed.2d 189. The instant case presents an unusual set of facts drawing on both purposes.
On a certain afternoon one Larity, a United States Postal Service mail carrier, having completed his deliveries, was on his way back to the post office to return mail he had picked up. He was in uniform, driving his own car. A double-parked truck impeded traffic, and Larity backed up to permit an on-coming car, driven by defendant, to pass. For reasons that do not appear, defendant stopped opposite Larity and responded to the courtesy with an obscene epithet. Larity told him to shut his mouth. Defendant, instead, spat in Larity's face. Both men then drove clear, stopped their cars, and emerged and approached each other.1 Larity testified that his intent was to demand an apology. Defendant frustrated this purpose by knocking him down, cutting his chin. Defendant was indicted under the statute, and found guilty by a jury.
On this appeal the principal issue is defendant's claim that he was entitled to a directed acquittal. He argues that spitting in the face does not amount to a forcible assault, and that when Larity, instead of driving on, left his car and approached defendant, he had ceased to be in the course of his employment.
We do not think it could be ruled that spitting in the face is not forcible assault, or, more exactly, a battery falling within the statutory description "forcibly assaults, resists, opposes, impedes, intimidates or interferes." Although minor, it is an application of force to the body of the victim, a bodily contact intentionally highly offensive. Alcorn v. Mitchell, 1872, 63 Ill. 553; Whitsett v. Ransom, 1883, 79 Mo. 258, 260. The statute does not require the infliction of bodily injury. Defendant confuses the issue when he says the government failed to prove Larity was put in fear. If fear were necessary to make a battery actionable under the statute, a defendant who struck before he was seen, and ran away, or rendered the victim immediately unconscious, so that no fear or apprehension arose, could not be convicted. Quite apart from defendant's generally improper interjection of the element of fear, cf. Commonwealth v. Slaney, 1962, 345 Mass. 135, 185 N.E.2d 919, it would seem particularly inappropriate to require fear in a statute...
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