United States v. Hodges, 329-70

• Decision Date: 03 February 1971
• Docket Number: No. 329-70,330-70 and 331-70.,329-70
• Citation: 436 F.2d 676
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Charles HODGES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jackie Anthony NEAL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jackie Lee JACKSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

436 F.2d 676 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Robert Charles HODGES, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jackie Anthony NEAL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jackie Lee JACKSON, Defendant-Appellant.

Nos. 329-70, 330-70 and 331-70.

United States Court of Appeals, Tenth Circuit.

January 13, 1971.

Rehearing Denied February 3, 1971.

John E. Green, Asst. U. S. Atty. (William R. Burkett, U. S. Atty., with him on the brief), for plaintiff-appellee.

Woodrow W. Adams, Oklahoma City, Okl. (Miller, Wilson, Adams & Spencer, Oklahoma City, Okl., with him on the brief), for defendants-appellants.

Before HILL and McWILLIAMS, Circuit Judges, and BRATTON, District Judge.

McWILLIAMS, Circuit Judge.

Hodges, Neal and Jackson, all inmates of the Federal Reformatory in El Reno, Oklahoma, were jointly indicted, tried and convicted for multiple violations of 18 U.S.C. §§ 111 and 1114 which make it unlawful to forcibly assault, resist, oppose, impede, intimidate or interfere with an officer or employee of any United States penal or correctional institution. Hodges was convicted on five counts of having thusly assaulted and resisted five different officers of the institution and he was sentenced to a term of three years on each of the five counts, the sentences to be served consecutively to each other and to commence upon the expiration of the sentence he was then serving. Neal and Jackson were both convicted on two counts, and each was sentenced to three years on each count, their respective sentences also to be served consecutively to each other and to commence upon the expiration of the sentence then being served.

The basic position here advanced by all appellants is that instead of being guilty of multiple offenses, they were guilty of but a single offense resulting from a continuing course of conduct and that the multiple sentences, which when combined exceed the maximum permitted by 18 U.S.C. § 111 (three years imprisonment or $5,000 fine, or both), are improper. In order to place appellants' argument in context, brief consideration of the evidence becomes advisable.

Hodges and Neal were involved in an altercation with a third inmate (not Jackson) which was broken up by officers of the institution. Because of the incident the officers determined to move both Hodges and Neal from the dormitory type building where they had been quartered to a maximum security cell house. When requested to "pack up" and go peacefully, Hodges and Neal began their course of resistance. It was in this setting that Neal struck Officer Taylor in the face with his fist. A free-for-all then followed, with Hodges attempting to come to the aid of Neal. Eventually Neal was subdued and he was then escorted to the cell house. While transferring Neal from the dormitory to the cell house Neal struck another guard, Waszak, as well as again striking Taylor. Based on this factual sequence, Neal was charged and convicted of forcibly assaulting and resisting Officers Taylor and Waszak.

As indicated, Hodges joined in the free-for-all in the dormitory and in the melee he kicked Taylor in the rib cage, cracking two ribs and badly bruising the lower right rib cage. Moments later Hodges kicked Officer Schwab in the back of the head, momentarily stunning him. The kicking of Taylor and Schwab formed the basis for counts one and two against Hodges. During this episode Hodges also struck Officer Waszak in the chest and this formed the basis for the third count filed against Hodges.

After Neal had been removed from the dormitory and after Hodges had himself been subdued, Hodges indicated that if released he would go peacefully to the cell house. The officers accordingly released their hold upon Hodges, whereupon Hodges resumed the struggle and forcibly resisted and struck Officers Baete and Ebeling. Counts four and five related to Hodges' resisting Officers Baete and Ebeling.

As concerns Jackson, he was not directly involved in the altercations above described, though he was suspected of attempting to incite other inmates to join in the affray. In any event, about two hours after the earlier incidents, the prison officials decided to place Jackson in the cell house. To this end Waszak and Baete escorted Jackson from the prison compound to the cell house and while en route Jackson struck Waszak in the mouth, knocking him to the ground. Jackson then wheeled on Baete and struck him several blows. Jackson was charged with forcibly assaulting and resisting Officers Waszak and Baete.

As might be expected, there was some conflict in the evidence as to just what happened, and in what sequence, but the foregoing is believed to be a fair recital of the events under consideration as portrayed by the prosecution's evidence.

18 U.S.C. § 111 provides as follows:

"Whoever 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

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