United States v. Linn, 271-70

• Decision Date: 18 February 1971
• Docket Number: 272-70.,No. 271-70,271-70
• Citation: 438 F.2d 456
• Parties: UNITED STATES of America, Appellee, v. Robert Frederick LINN and Martha J. Linn, Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

438 F.2d 456 (1971)

UNITED STATES of America, Appellee, v. Robert Frederick LINN and Martha J. Linn, Appellants.

Nos. 271-70, 272-70.

United States Court of Appeals, Tenth Circuit.

February 4, 1971.

Rehearing Denied February 18, 1971.

Gordon L. Allott, Jr., Asst. U. S. Atty. (James L. Treece, U. S. Atty., with him on the brief), for appellee.

Paul Arabia, Wichita, Kan., for appellants.

Before HILL and SETH, Circuit Judges, and THEIS, District Judge.

THEIS, District Judge.

This is a direct appeal by Robert F. Linn and Martha J. Linn, his mother, from a conviction after trial by jury of violating 18 U.S.C.A. § 111.

On July 17, 1969, a complaint was filed against appellant Robert F. Linn in the District of Colorado, alleging that he assaulted one Philip J. Carney, a postal employee, in violation of 18 U.S.C.A. § 111. Based upon this complaint, a warrant was duly issued for the arrest of Robert F. Linn. On July 23, 1969, the United States Marshal for the District of Colorado, William H. Terrill, and a Deputy United States Marshal, Wallace Allen, went to the vicinity of appellants' home for the purpose of arresting Robert F. Linn. Deputy Allen testified that he had attempted to execute the warrant the preceding day but found no one present at the Linn residence.

Marshal Terrill and Deputy Allen had received information leading them to believe that the Linns would be arriving at their apartment late in the afternoon on July 23, 1969. They went to the vicinity of the Linn residence and stationed themselves, in an automobile, so that they could observe the apartment and the spot where they anticipated that the appellants would depart from the bus. Shortly after 6:00 p. m., the marshals observed the appellants get off a bus and proceed down an alley toward their apartment. The marshals drove a short distance toward the appellants and stopped. At this point Marshal Terrill got out of the car, approached the appellants and stated he was the United States Marshal and that he had a warrant authorizing the arrest of Robert F. Linn. Marshal Terrill also testified that he displayed his official credentials to the appellants. At approximately the same time, Mr. Linn was handed a copy of the warrant and complaint by Deputy Allen. Robert F. Linn's testimony in this regard was the same, except he denied that Marshal Terrill produced his credentials. Linn testified he thought the whole situation was a "farce," and he tore the warrant and complaint in two and threw them on the ground.

When Robert F. Linn tore the warrant and complaint and threw them on the ground, Marshal Terrill and Deputy Allen proceeded to physically take hold of Robert F. Linn and handcuff him, and then place him in their automobile. Mr. Linn resisted this arrest and his testimony indicates that he attempted to escape, and that "there were arms and legs flying around." Marshal Terrill testified that he was kicked and Deputy Allen was struck by Robert F. Linn. Marshal Terrill also testified that Martha J. Linn was on his back trying to prevent him from handcuffing Robert F. Linn. Deputy Allen testified he was scratched on the face while helping Marshal Terrill subdue Mr. Linn.

Subsequent to this incident, a Grand Jury returned a three-count indictment charging, in the first count, that Robert F. Linn:

"* * * did forcibly assault, resist, oppose, impede, intimidate and interfere with Philip J. Carney, an employee in the Federal Service of the United States Post Office Department, Denver, Colorado, while the said Philip J. Carney was engaged in and on account of the performance of his official duties * * *"

in violation of 18 U.S.C.A. § 111. Count Two charged, in substantially the same language, that both appellants did forcibly assault, resist, oppose, impede, intimidate and interfere with Marshal Terrill while performing his official duties. Count Three charged that both appellants similarly violated 18 U.S.C.A. § 111 with respect to Deputy Allen.

Prior to trial, Count One was severed from the indictment and appellants proceeded to trial on Counts Two and Three. Robert F. Linn was found guilty on both Counts Two and Three; Martha J. Linn was acquitted on Count Two, but found guilty on Count Three. The instant appeal was subsequently perfected.

Appellants first contend that 18 U.S.C.A. § 111 is unconstitutionally vague, indefinite and ambiguous. We cannot agree. § 111 clearly gives a person of ordinary intelligence fair notice of what conduct is proscribed and meets the test of definiteness set out in United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954).

Appellants next contend that the indictment is invalid because it was not approved by at least twelve Grand Jurors, as required by Rule 6 of the Federal Rules of Criminal Procedure, 18 U.S. C.A. This contention has no merit in the face of the record before this Court, which clearly reflects that twenty-three Grand Jurors concurred in the indictment.

The appellants also complain of certain questions which were asked of prospective jurors during the voir dire examination by the trial court. As we have held on prior occasions, this is a matter within the sound discretion of the trial court and this discretion will not be disturbed on appeal absent a clear showing of abuse. Kreuter v. United States, 376 F.2d 654 (10th Cir. 1967), cert. denied, 390 U.S. 1015, 88 S.Ct. 1267, 20 L.Ed.2d 165 (1968). During the voir dire examination, one of the prospective jurors indicated that her brother-in-law was an employee of the United States Post Office. The trial court then inquired of this juror as to whether it would affect her deliberations if it appeared that the marshals were attempting to arrest Robert F. Linn for a prior assault on a postal employee, and she replied in the negative.

One of the elements of the offense proscribed by § 111 is that the federal officer assaulted be engaged in the performance of his official duties and not on a frolic of his own. United States v. Heliczer, 373 F.2d 241 (2d Cir. 1967). This made it virtually certain that the fact that Robert F. Linn was charged with the prior assault of a postal employee would appear during the Government's case in chief. In United States v. Bowe, 360 F.2d 1 (2d Cir.), cert. denied, 385 U.S. 961, 87 S.Ct. 401, 17 L. Ed.2d 306 (1966), cert. denied sub nom., Collier v. United States, 385 U.S. 1042, 87 S.Ct. 779, 17 L.Ed.2d 686, rehearing denied, 386 U.S. 969, 87 S.Ct. 1040, 18 L.Ed.2d 127 (1967), it was held that where the pretrial record raises the possibility that some testimony may touch upon a certain fact, it is entirely proper to inquire on voir dire whether any juror might be prejudiced thereby.

Appellant Martha J. Linn also challenges the sufficiency of the evidence to sustain her conviction on Count Three of the indictment. In reviewing the evidence that was produced in the district court, we must consider the evidence in the light most favorable to the Government, together with any inferences which may be fairly drawn therefrom, to determine whether the jury could find guilt beyond a reasonable doubt. Thomas v. United States, 409 F.2d 730 (10th Cir. 1969).

The evidence tending to support the Government reflects that Martha J. Linn was on the back of Marshal Terrill while he and Deputy Allen were attempting to handcuff Robert F. Linn. It was during this period of time that Deputy Allen was scratched on the face. Both marshals were involved in attempting to subdue Mr. Linn, and one was on either side holding him while attempting to handcuff him. Suffice it to say that we think it was a reasonable inference from the evidence that Martha J. Linn was the person who scratched Deputy Allen.

Both appellants next assert that the conviction for "assault" cannot be sustained due to the fact that the evidence produced by the Government establishes a "battery" rather than an "assault." In support of this position the appellants cite numerous state court decisions. We have examined this argument and find it lacking in merit. The cases are numerous which hold that when the evidence shows there has been a battery of the federal officers, this is sufficient to sustain a conviction under § 111. See, e. g., United States v. Tijerina, 407 F.2d 349 (10th Cir. 1969); United States v. Wallace, 368 F.2d 537 (4th Cir. 1966).

The appellants also contend that the trial court erred in refusing to give certain tendered instructions...