United States v. Colin Emanuel McKenzie
409 F.2d 983
2d Cir.
1969
Check Treatment

*1 983 voyage very course, her it was 25 repairs August extensive after these America, UNITED of STATES shortly developed in the stuff- leaks Appellee, bringing her total loss. about box McKENZIE, Colin Appellant. Emanuel important, rath that rule More 430, No. Docket 32105. equally compels ad helping, an er than Ameri For under the verse conclusion. Appeals United States Court of English, Rule, an the there is unlike can Second Circuit. warranty implied of seaworthiness Argued 11, March 1969. consequence policy.26 of is A this time 28, Decided March 1969. unseaworthy the vessel is —as Papoose assuredly the was27 —at M/Y attaches, the breach time the insurance Existing, absolutely policy.28 the avoids kept

spectacular the unseaworthiness becoming

policy from effective.29 right on all scores: Judge was Florida, mari- law, facts, the

the of both. amphibious mixture an or

time it ends.

There

Affirmed. emphasis patent com- up in Burekes’s of the 25. All all add unseaworthiness 277] Tierney Tierney Harris, munication aas matter of law. See Walker v. repairs in Cir., 1964, 185, terms of were in Hall-Becker 5 335 F.2d 1964 A.M.C. neighborhood As- 1759, denied, 1964, 930, $1800-$2000. cert. 379 U.S. the freely acknowledged 326, the cost sured 85 13 L.Ed.2d 342. S.Ct. required repairs making Chadwick the 650, 28. 45 C.J.S Insurance at 555 See figure, aggregating some far exceed warranty “If there is breach of a $5000. testified about * * * void, policy is null and Eng- liability between the As to the distinction 26. underwriters are relieved of their pres- notwithstanding rule on American and the lish is not connected loss warranty sea- of a or absence ence with the breach or the breach is cured policy, prior see the in a time worthiness M/V also Levine loss.” See Pack, 1943, Spot Co., Cir., Of- Gov’t. Ins. Cir., 1957, 2 Saskatchewan Aetna Ins. 139 F.2d Spot Pack, Inc., 217; Fidelity-Phenix 242 Chicago 5 Ins. Co. v. fice 388, Co., Cir., 1926, 655. Under A.M.C. 1957 Title & Trust 7 12 F.2d warranty rule, sea- American 573. very implied warranty course, complied mo- as of the if the worthiness is Of policy attachment, insurance. attachment with at is ef ment of then subsequent merely war- rule once the American fective and breaches Under clearly (as suspend coverage ranty was not is satisfied until the breach is cured warranty consequences here) becomes thereafter and the of the breach are “negative” Henjes Co., which it one in obliterated. v. Aetna Ins. modified owner, Cir., 1943, bad faith 2 that the warranted A.M.C. permit neglect denied, 1943, will not 319 U.S. unseaworthy ground in an S.Ct. L.Ed. 1711. to break vessel condition. pretrial stipulation-order Under clearly (a) Although precisely affirma- stated within issues of fact: (see, “(c) seaworthy Judge’s findings Papoose tively of fact was the M/V “(b) 8), g., 270] at 386 all material times?” of law: [R. A.M.C. No. e. warranty (e. g., “—con- Has breached its [Assured] of law conclusions survey report cealing which shows seaworthiness?” Cf. Laird v. Air Carrier Engine unseaworthy Service, Inc., Cir., 1959, at the time vessel application ”), at 389 F.2d 948. [R. A.M.C. — *2 6, 1967, “unlawfully, wilfully he and resist, forcibly assault,

oppose, impede, and interfere intimidate Immigration with” Officers two federal attempting while du- in the course of their official him ties, all in 18 U.S.C. violation of §§ suspended judge and 1114.1 The trial placed imposition and sentence probation period on for comply year he one on condition that Im- with all orders and directions of migration Naturalization Service. 29, 1967, Subsequently, he on December Honduras, deported British residing. presently McKen- where he judgment appeals of con- zie from the viction, claiming trial court’s charge jury erroneous. judgment. affirm the twenty-one year appellant old The ais He en- citizen of Honduras. British aon tered the United States valid for student visa which was be years annually After four renewed. year study completing his at Institute, renewed the RCA year, academic for the 1965-66 visa he but difficulties financial City Kessler, New York W. Lawrence schooling early in the fol- ábandoned his Adler, City, (Milton York on New lowing year employment. brief), appellant. for McKenzie knew When this occurred right stay Wing, Atty., New here more.” U. S. “had John R. Asst. Morgenthau, ap- City (Robert S. On M. U. October when he York York, officers, prehended by immigration Atty., Dist. New for Southern Atty., working Doyle, III, U. at the Asst. S. McKenzie was Saunders John H. appellee. Company in York brief), New for Formal Wear Young. City pseudonymously as Emanuel MOORE, KAUFMAN Before Judges. FEINBERG, Circuit given im- account at the time migration Meyer and Rufft officers KAUFMAN, R. Circuit IRVING giving rise to the conviction events Judge; considerably differed convicted version. testified Colin McKenzie was Formal entered Saunders Court District United States York, premises spoke man after with the New Wear District of Southern Pissaro, upon charge, led them count indictment who trial, Vincent wait- on or about October stock room. While Rufft into the duties, part: provides fined not more ficial shall 1. 18 U.S.C. § op- $5,000 imprisoned forcibly assaults, resists, more than “Whoever years, intimidates, impedes, poses, three or both.” or interferes than designated any person in the list of federal 1114 includes section And with “any protected engaged so in or title of this while performance of his of- officer.” on account

9»5 exit, pointed at the struggle Pissaro out get continued to Rufft’s According Meyer, Meyer. away Kenzie to arm from his throat. shield, he showed McKenzie his identifi- We should note at the outset that Mc- card, warrant, say- cation and an arrest Kenzie’s contention that he was convicted im- time was an the same that he of the “resist” rather than “assault” *3 migration officer and McKenzie provisions of Thus, 111 is § correct. under To arrest. this jury, summation to the the United you response “I don’t know what Attorney specifically States abandoned talking are about.” He then brushed any claim that guilty McKenzie was Meyer past away. and walked When judge assault.2 And the trial effective- Meyer pursued again and to ar- ly precluded jury considering him, he had to to rest said McKenzie possibility com- McKenzie had bathroom, warrant out knocked the mitted an reading assault when in hand, corner of his and fled around a statute and the jury indictment to the exit, an where he was inter- towards defining and in their terms he omitted ensued, by struggle cepted Rufft. A any provisions. to the assault reference insisting to that he had with go Moreover, the communication from the Meyer, bathroom, hav- while jury after its deliberations under brought handcuffs, attempt- ing out his way requesting a redefinition of “resist- put him held and Rufft ed to them judge’s and response arrest” con- struggle lock. After a him a head clusively foreclosed consideration of minutes, lasting about five assault. finally testified was similarly subdued. charging jury In on the elements circumstances of the to the as resisting of the crime of arrest under § struggle. judge the trial instructed He tes- convict, McKenzie’s version differed. order to must find with way respect that as he was on his tified lavatory to scienter: Meyer, he encountered who “that the defendant committed this you,” stated “I want to talk to but that unlawfully, wilfully, knowing- act and given Meyer’s he was indication of ly.3 government required is not identity. merely McKenzie said he con- prove that the defendant knew that way tinued on the toward his destina- person resisted, opposed, impeded, jumped tion when Rufft himon and or interfered with was a federal of- him, Meyer choked while drew out his ficer.” handcuffs. McKenzie insisted at the contention, McKenzie’s sole raised for that he had not known the men appeal, the first time on is that were federal officers until drew charge fundamentally erroneous be- handcuffs, out his and that at that time it failed to cause instruct that any event, ‘knowingly’ “In at that time I said in the “An act is done if it is basically opening resisting voluntarily purposefully a this was done and exactly mistake, accident, [easel and that’s arrest what it mere not because of negligence, is. I would submit the evidence or other innocent reason. shows that there was a technical assault “An act is ‘wilful’ if done know- it is deliberately. ingly as well as all the other crimes “ considering ‘Unlawfully,’ course, I think but you the case means con- your trary law; hence, should attention direct to do an act un- lawfully something or not there was forcible re- to do means prohibits. [sic] sist or arrest. the law determining “In whether a defendant contending “We are not this was a wilfully has is acted wild, bloody just melee. It is re- necessary government for es- sisting arrest.” tablish that the defendant knew that breaking any particular judge he was law The trial further defined these any particular terms as follows: rule.” (1961), apposite are those cases for know that need not the defendant officer, all crimes rather involved of assault person is a resisted federal than the rule an resistance. believe officer know that must McKenzie, urged adopted argues law. McKenzie of the Ry essentially v. jurisdictional It Sixth Circuit in United States statute. bicki, (1968), much the com- F.2d 599 has provides a forum federal resisting Unit commend it. See also Burke assault law mon crimes 1968); States, (5th 400 F.2d 866 Cir. the victim in cases where urges, Traditionally, Heliczer, United officer. States federal (2d Cir.), knowledge identity one denied 388 necessary; (1967); takes one L.Ed.2d is not assaulted Hence, Wallace, him. United finds States one’s assaultee as *4 (4th 1966). assault- 538 crime Cir. commits federal to if he intends federal officer proceedings In trial view of the in the though assault, he has commit the court, however, ap we do it not believe knowledge of- is an that the victim propriate omis to consider the court’s contrast, In or a officer. ficer federal 52(b) error,” “plain sion as Rule see resisting contends, of the crime he F.R.Crim.P., to reverse on this traditionally requires that the defend- ground. record Mc The reveals that person law the resisted is a ant know merely fail Kenzie’s trial counsel did not Therefore, agent.4 enforcement request to an instruction on scienter or submits, commit the order to Kenzie in charge. exception to to the take court’s 111, resisting de- crime of under the § might liberty feel at notice the to similarly that must be aware fendant error were all was nevertheless that that resisting law, the al- an officer of he Ry g., before E. us. United v. States though realize the he need not officer Pugliese, bicki, supra; United v. States agent. a federal here, (2d 1965). 346 F.2d 861 Cir. But Pug distinguished Rybicki as pre argument properly Had this been liese, court, it that the omission is clear in we would not sented the trial counsel’s tactical result of deliberate inclined to it as be dismiss devoid present language decision dif in to the case on Although merit. there is Thus, theory. opening to knowledge ferent in his to effect that some cases jury, counsel officers identity acted conceded that against necessary had them identified is not violation they agents 111, g., selves as when Mon federal e. States v. United theory Cir.) approached (2d (per tanaro, McKenzie. 527 Counsel’s 362 F.2d 920, curiam), 87 was that McKenzie had resist cert. 385 U.S. denied arrest, (1966); be 233, ed action wilful 144 Unit his was not 17 S.Ct. L.Ed.2d got 414, gotten “frightened, Lombardozzi, cause he had v. 335 F.2d States Cir.), the law (2d scared” when he realized that 10 A.L.R.3d cert. denied 826 261, caught 914, up In counsel’s had with him. 13 L.Ed.2d 379 U.S. 85 S.Ct. States, got (1964); ex words: did this because he v. United “He 185 Bennett * * * Cir.), (5th was al 366 cited and he F.2d cert. denied 285 567 5 go attempting 911, 1087, 236 so to to the bathroom.” 6 L.Ed.2d 81 U.S. S.Ct. way bathroom, Gordon, See, e.g., City that he on to the v. 54 Seattle immigra- they identify (1959); 516, themselves as Peo 604 Wash.2d 342 P.2d stop. officers, Galick, 961, ple tion told him 176 N.Y.S. 11 Misc.2d got got frightened, (1958). Mr. McKenzie 2d 479 bathroom, scared; had to Thus, altercation with one had an counsel stated: officers, immigration will tell and "he stand and “Mr. will take the you testify 6, not —it he resisted or 1967 he will October may immigration have not to me —he did come too clear two pushed employed, place officer where he was

98? MOORE, ap Thus, only Judge (concurring not fail did counsel Circuit result): prise now the court of issue raised, might have, it so that I concur in light be result. In our probably developed decisions United States v. Monta would have been 527, naro, 362 F.2d cert. denied 385 U.S. time, properly dealt at United with 233, (1966) L.Ed.2d 144 D’Amico, (2d Cir. States Lombardozzi, and United States v. 20, 1969) (per February curi decided F.2d cert. denied 379 am) ; Gitlitz, United States (1964), S.Ct. 13 L.Ed.2d I do 1966); (2d In United States v. Cir. any not find omission of an essential 1965), diviglio, (2d Cir. 352 F.2d 276 charge. element Nor court’s 907, 86 denied 383 U.S. S.Ct. regard Rybicki, do I United States v. actually (1966), 15 L.Ed.2d 663 but (6th 1968) stating 403 F.2d 599 Cir. as it led the court to believe need a rule at our variance with decisions. all. claim Absent considered Rybicki In reversible error found incompetent, which has that counsel was charge trial court’s failure suggested case, Ry “an we element of been in this even crime knowledge bicki was the Internal be bound believe that must agents Revenue were such and en had tactical choice—-wise been gaged performing duty.” *5 their not, successful, when as in most unwise “Rybicki did court instruct that every present the case criminal case—to had to know that the men were officers theory. on a different See performance and were in the their Henry Mississippi, 379 450- duties.” (1965). 564, 13 L.Ed.2d 408 Here, however, reading after in- dictment, Finally, alleged, part, we note that which in de- fendant resisted Kenzie testified that officers performance of their du- Rufft had not identified themselves ini- ties, specified there were five essential tially, admitted he realized elements which concluded with de- were law enforcement officers when “committing fendant’s act [resist- Meyer pulled out his handcuffs. It ing immigration unlawfully, officers] undisputed greater part that the of the wilfully knowingly.” qual- only struggle which constituted resist- ification which the court made as to ance occurred after the handcuffs came knowledge government was that did into view. This admission itself un- prove not have to defendant doubtedly fortified McKenzie’s counsel knew resisted “a pursuing tactic which he federal officer.” on the issue scienter. Therefore, join I cannot state- though dictum, ment, even precludes We believe this record us majority opinion Rybicki that there is a recognizing claim rule “has much it” to commend error at this late date. deficiency Rybicki because the charge is

Affirmed. found here. him, testify he did this because he was also scratched but he will at- tempting (Em- wilfully bathroom.” did not do this and he did phasis intentionally. added.) not do it He did this got [sic] excited and