United States v. Rouse, 71-1325. Summary Calendar.
| Decision Date | 22 December 1971 |
| Docket Number | No. 71-1325. Summary Calendar.,71-1325. Summary Calendar. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joshua Dailey ROUSE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
M. A. Marsal, Mobile, Ala., for defendant-appellant.
Irwin W. Coleman, Asst. U. S. Atty., C. S. White-Spunner, Jr., U. S. Atty., Mobile, Ala., for plaintiff-appellee.
Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
Joshua Dailey Rouse appeals from a conviction for assaulting federal officers in violation of 18 U.S.C. § 111.1 We affirm.
This assault conviction grew out of an attempt by three F.B.I. agents to arrest Rouse for an alleged Dyer Act violation. On March 6, 1970, a federal grand jury in Mobile, Alabama, returned an indictment against Rouse charging him with the interstate transportation of a stolen car, and a warrant for Rouse's arrest was issued on that indictment. On the same date, three F.B.I. agents went to Webb's Cafe, a business run by Rouse in Calvert, Alabama, to arrest him. Rouse went outside the cafe with the agents and a scuffle ensued in which Rouse admittedly brandished a knife. Rouse was subdued, arrested, and charged with assault.
During the trial, the Government offered as evidence a copy of the indictment returned against Rouse for transporting a stolen motor vehicle in interstate commerce. Rouse argues that the admission of this indictment into evidence was reversible error because it "shed no light on relevant issues in the case, and had no effect other than to prejudice the defendant". Appellant cites no authority for the proposition that the admission of the indictment was error.
This contention must fail. One element of a Section 111 violation is that the federal officers be assaulted "while engaged in or on account of their official duties". Admission of the indictment was certainly relevant to this element of the crime since it established that Rouse was subject to arrest by the agents. Accordingly, admission of the indictment was permissible.
Rouse alternatively argues that even if the indictment was admissible, it was reversible error for the trial judge to fail to instruct the jury that the indictment should be considered only for the limited purpose of proving that the federal officers were engaged in the performance of their duties. However, the record reveals that Rouse failed to properly present this contention to the trial court by requesting such a cautionary instruction before the jury retired in compliance with Rule 30, F.R.Crim.P. Hence, this court can reverse the trial court only if its failure to give such an instruction was plain error. Rule 52(b), F.R.Crim.P.; Apodaca v. United States, 10 Cir. 1951, 188 F.2d 932, 937. After a careful review of this record, we cannot conclude that the failure to give such an instruction had such a prejudicial effect on the defendant's substantial rights as to place it in the category of plain error. See United States v. Ostendorff, 4 Cir. 1967, 371 F.2d 729; Chubet v. United States, 8 Cir. 1969, 414 F.2d 1018 (1969).
The three agents testified at the trial that, after the melee and arrest, and while on route to jail in Mobile, the defendant spontaneously volunteered a statement, the gist of which was that it was a good thing that the agents had arrested Rouse outside the cafe because he had a gun inside the cafe and would have killed at least two of the agents had they attempted to arrest him there.2 There was varying testimony as to how long after the scuffle this statement was allegedly made. Agent Robinson fixed the time as 20 minutes afterwards; whereas, agents Volmer and Dayton estimated that the statement was made four or five minutes afterwards. Over the objections of the defendant, the trial judge admitted the testimony concerning this statement.
On appeal, Rouse argues that this testimony was erroneously admitted because the statement was made at a point in time too remote from the scuffle and arrest to be admissible as "part of the res gestae". This argument reflects a misunderstanding of the doctrine of res gestae. That doctrine is an exception to the rule against hearsay which provides that statements which would otherwise be inadmissible as hearsay may be admitted if they closely accompany material acts or situations. See 6 Wigmore, Evidence §§ 1746, 1747 (3rd Ed. 1940).3 In this case, however, Rouse's statement was not hearsay but rather was an admission which was relevant to his intent at the time he committed the alleged assault; thus, it is irrelevant whether this statement was part of the res gestae. As stated by Wigmore, "any and every statement of an accused person, so far as not excluded by the doctrine of confessions * * * or by the privilege against self-incrimination * * * is usable against him as an admission * * *." 6 Wigmore, Evidence, § 1732, p. 99 (3rd Ed. 1940); see also Asher v. United States, 9 Cir. 1968, 394 F.2d 424, 429. The doctrine of res gestae does not, of course, stand for any general rule that statements of criminal defendants are inadmissible unless made contemporaneously with the alleged criminal act.
Rouse's second objection concerning this testimony relates to the cautionary instructions given by the trial judge. In his instructions, the judge stated that the testimony concerning this alleged statement was evidence "to indicate what the defendant's state of mind was at the time this thing occurred back up at the cafe". This charge informed the jury that the testimony was admitted for the limited purpose of proving specific criminal intent. It did not constitute, as alleged by Rouse, an unwarranted comment on the evidence.
Rouse's final assignment of error relates to another portion of the charge. At one point in the charge, the judge stated:
And if you are convinced beyond a reasonable doubt that under those circumstances he made any resistance; jerked away from them, pulled a knife out of his pocket or anything; if you are convinced beyond a reasonable doubt of...
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