United States v. Daniel Reid and Theodore E. Thomas, Jr.

Before FRIENDLY and MANS FIELD, Judges, BARTELS, Circuit Judge.* District FRIENDLY, Judge: Circuit About four o’clock in the afternoon of August Special Agent Patrick Drug Shea of the Enforcement Adminis (DEA) tration went to a barbershop in get during the Bronx to a haircut a late period. later, lunch Five minutes hear ing immediately adja a commotion in an store, liquor cent he rose from the bar and, chair gown, ber’s still clad in his store, taking entered the but not before badge, DEA clearly displayed out his case, drawing its hand and his Government-issued revolver with the He defendant Reid1 other. observed on beating proprietor, floor John McArdle, with a broken bottle.2 Shea “Freeze, police.” up Reid stood shouted him. then became and faced Shea in another corner presence aware of the Thomas, whom of the store defendant Instead, told to “freeze.” while he also Reid, fixed on attention was Shea’s crossing Thomas succeeded room and, holding long-barreled automatic Shea, drop pistol, got on directed revolver, to surrender his took this him Wohl, Ronald Gene New York City, badge, DEA and ordered and Shea’s for defendant-appellant Reid. get down on floor. Shea Shea E. Thomas Boyle, Fed. Defender Serv- stomach, but, his kept while on complied ices, Legal Aid Society, New York City attention focused on Thomas. Thom his (William J. Gallagher, and The Legal arm, right shat then shot Shea Society, Aid Fed. Defender Services When tering the radial bone. Shea cried Unit, New City, York counsel), me”, Thomas, scarcely news to “You shot defendant-appellant Thomas. going answered “I am to kill the latter Sehatten, shot, Steven A. happi Asst. U. fired another Atty. you.” S. Thomas (Paul Curran, desired, J. U. Atty. ly consequence S. without and for the Southern District York, join of New him at the front waited for Reid Thomas, Gordan, III, John D. Asst. then U. store. Reid and Atty., S. counsel), for appellee. fled, leaving eye-glasses, latter his * wounds, treatment administered Eastern District from Court for the the District Of hardly him York, designation. had done sitting by defendants New brought charge good. No murder stating the we follow Shea’s testimo- 1. In facts pleaded guilty Thomas to one Reid and State. ny and assume the correctness of the identifi- charging a number indictment of a state count IV, See Part infra. cations. (attempted of both Shea murder of offenses McArdle, robbery appellant acknowledged, Reid Shea and McAr- As has McAr- of both arising weapon) repeatedly dle, dangerous possession stabbed dle had been with an ice of a pick. were sentenced to He died four weeks later. While we the same incident and from years imprisonment. this was from a heart attack and not were told three to six 641) (Count Five); transportation of a opti- later identified which interstate commerce firearm in technician, stolen who issued and his cian (Count Six); 922(i), 924(a)) Thomas, (18 U.S.C. being §§ glasses to pairs of

two ve- transportation of stolen motor to those respects similar issued. in all in interstate commerce U.S.C. hicle injury, attempt- Despite serious Shea his Seven). 2312) After trial be- (Count on but Thomas fired pursue foot ed jury, jury Judge Conner and him, forcing fore him seek two shots except all cover, convicted on counts Count the two men entered Buick Five, acquitted, apparent- they which plate the license number wagon, station of doubt as to value of the ly was able to observe and because which Shea high property. stolen Government They speed, drove off at recall. imposed prison concurrent sen- striking attempting vehicle in a Conner another tences, U-turn, Thomas at the wheel. as follows: rejoined pursuit in un- his Shea Reid, DEA automobile but unable marked Thomas (in years) (in sought regain sight years) of them and medi- Buick Count 1 wagon attention. The station cal 6 8 in later discovered Manhattan and Count 2 25 25 investigators were able to lift several la- Count 3 6 8 it fingerprints from which upon tent Count 4 3 3 analysis turned out to be those of Thom- 6 Count 2 2 days Three later Reid and as. Thomas Count 7 2 2 apprehended in Ohio in a Pontiac stolen, according which was to a garage Bail was appeal continued this fol- attendant, accomplice Reid and on lowed. 29, According July to the arrest- I. The Legal Sufficiency of officer, revolver, a ing Reid threw identi- Count Two. Shea, as the one fied stolen from out of the driver’s window. mayWe as well proceed direct ly to the defendants’ attack on indictment, Count in the District Court The Two3 on the basis that 2114 is § limited York, New Southern District of for the to offenses having postal a nexus. After in and Thomas seven charged Reid argued, this case was we sustained that assaulting a officer with federal counts Rivera, contention in United States v. (18 a deadly weapon, revolver 519, (2 513 F.2d 1975), 531-532 Cir. One); 111) (Count the wound- § U.S.C. agreeing with the concession of Shea, So Special Agent Patrick of ing licitor General in United States Hana proper- custodian of Government lawful han, (7 442 F.2d 649 Cir. vacated robbery effecting property of of in ty and remanded for in States, reconsideration namely, (18 revolver United light of Solicitor position, General’s 414 (Count Two); 2114) unlawful § U.S.C. 807, 169, 38 L.Ed.2d 43 in the commission of a of firearm use decision in United (Count (18 924(c)) States felony § U.S.C. federal Fernandez, 730, F.2d 497 (9 739-40 Three); robbery of the property of Unit- 1974). See also United States v. 2112) (Count (18 § U.S.C. ed States Spears, U.S.App.D.C. 284, 145 Pour); property of Government theft 946, (1971). 951-54 in excess of $100 valued U.S.C. superseding infra, may light was included in a text count be 3. This excusable in of its 968, date, indictment, up inexplicable be- handed week recent it is 74 Cr. the United consistently Attorney apparently con- Defendants trial. was not fore aware of legal position basis the count was without taken tended that Solicitor General postal limited to assaults reference to 2114 in § 2114 was United § since States v. Hanahan, infra, Although counsel employees. year the failure of also cited in text over a judge superseding acquaint Ninth Circuit’s before with the indictment. Fernandez, cited United States decision 1440, Cong., 74th 1st Sess. Further research on De- part our has made spite the generality of the language the correctness of that view even clearer. the amendment and in the At the time of titles and the 1935 lan- amendment guage 2114, of the 26, reports, committee August 1935, Act of no 694, § ch. 867, would have entertained Stat. which added doubt of phrase scope limited of “money or other if had property § been of the United allowed to remain chapter in the States” “mail matter” in 18 U.S.C. Criminal (1934 ed.), Code where Congress § § 320 stood in had por- placed it.3a And Code, tion remain it did peri of the Criminal for a then Chapter od of 8, years which, entitled Against Offenses codifications Postal Serv- though unofficial, (Code ice of Laws were widely used. United States See 18 U.S.C. V, § America Force January 3, (Cum.Supp. 1935). Code of the predecessors Its Laws similarly been United States or- America, ganized (1939)); having codifications Edition the force (1940 ed.); U.S.C. positive law. See Act of U.S.C. 4, March (1946 ed.). codify, An Act To Reviser’s transfer revise, 320 in penal Act of amend the June laws ch. Chapter ch. Stat. 35 Stat. Rob (part bery and Chapter Eight, Burglary, where it Against appears Offenses now Service); 2114,4 Postal with what were Rev.Stat. characterized §§ (1878) (part of section devoted to Postal changes ... phrase as in “[m]inor Crimes). The 1935 amendment, H.R. ology,” expand did not the meaning Con 5360, Cong., 74th (1935), 1st Sess. came gress had entertained in 1935. Although in to response request a 1933 from the constituting positive law, “[t]he 1948 Re Postmaster General and was handled in was not vision intended to create new by the House the Committee on the Post crimes but to recodify those then in ex Roads, Office and Post see H.R.Rep. No. istence.” Morissette v. United 582, Cong., 74th (1935), 1st Sess. and in 246, 342 U.S. 266-69 28, n. 72 by the Senate the S.Ct. 240, Committee on Post 253, 96 Roads, Offices and Post Sen.Rep. see L.Ed. (1952).5 288 No. chapter in which stood the of the a statute strange 3a. is rather the dissent should against dealing Code with offenses Criminal quote from United States American Truck- postal Congressman could service. No Ass’n, the 534, 1059, ing 84 L.Ed. that, supposed passing an in amendment have leading authority against 1345 the by proposed the Postmaster section meaning” doctrine, “plain as if it were one in by the committees General and recommended quo- its favor. The two sentences chosen for service, postal dealing he with the was creat- along paragraph be with tation should read the government ing a new crime para- preceded that graph and the remainder of the generally. property them, that followed 310 at 1059, light in 60 and of the result the misguided on 4. This effort view was, actually course, reached.. There Court of robbery any government property of since the nothing eloquent novel in Mr. Justice Reed’s long is now 18 been covered what explicit repudiation “plain and of the mean- 2112, g., see e. Act of March § U.S.C. doctrine; ing” Chief Justice Marshall had writ- 193, 557, in ch. Stat. codified Rev.Stat. many years before: ten (1946 5456; ed.), the and real § U.S.C. § the mind provi Where labors discover the de- of was that its assault § 320 importance legislature, sign everything of the postal employees seizes whereas sions covered all aid employees gen from which can be derived. only postal covered in the the Fisher, (6 U.S.) 358, States v. concerning Cranch assaults on federal offi eral statute cers, 386, (1805). 254, “post-of L.Ed. See also United 253 and §§ U.S.C. Dickerson, 554, 561-62, inspectors”. fice 1034, 84 L.Ed. Whatever is weight appropriate given meaning be the to the re- of the 5. The broad view Dobbins, Representative marks of United States see United taken the office Attor- Rivera, ney York States v. 531 n. 18 for the Southern District of New has reliance on these now turns out to be been shared careful students not Commission, unnecessary in view of the fact The Brown we Criminal Code. learned, responsibility drafting have now the 1935 amendment the Pro- was to which had make an assault “any on civil to re- official, has cause now prosecution inspector, agent, or other officer or Two including Count em- error in gret its ployee United States” a since federal indictment superseding crime, Rep. H.R. No. Cong., 73d imposed higher 2d might well have judge (1934), Congress Sess. 1 adopted he had other counts if on sentences practice of limiting the offense to Count Two as- the conviction on known sault, etc., upon specified categories was in- year sentence mandatory pattern, federal officers. The difficulty was of estab- valid. But lished in the May Act of ch. making own Government’s 48 Stat. has been the backhand- superseding indictment of the draftsman listing ed one of these categories or, ar- in a gathered as we follow did not section, now 18 U.S.C. making of the not know Solicitor gument, did their killing punishable a homicide proper concession Hanahan General’s way same as homicides as defined in oth- power remedy. beyond our and is sections, er now 1111 and §§ the evidence warranted then limiting statute, Whether II. assault under Difficulty conviction them.7 has arisen recently when reorganization executive plans interesting important most have transferred a function from a cate Agent is whether Shea raised question gory named 1114 to a newly created engaged in or assaulted “while assault has occurred before performance his offi- account Congress has been able to revise that duties”, charged 18 U.S.C. § cial section to reflect the change. Count One. issue, dealing with that we Before since, al here the situation That point which, pause although over a must transferred Attorney General though the by appellants, raised has come to our of Narcotics Bureau functions study as a result of our of this attention (BNDD) to the Drugs Dangerous point goes to the appeal. Since basic of Fed the Code by amendment DEA charged whether Count One the question 18380, on 38 F.R. see Regulations, eral and, of a crime not now commission if to Executive Or 1973, pursuant 10, July of, will disposed certainly almost become earlier, Reorgani days of four 11727 der proceeding under the basis for 28 (effective July 1973 No. 2 of Plan zation 35, 2255 or F.R.Cr.P. we think it § U.S.C. (1972), 87 15932 Stat. F.R. 1, 1973), 38 to decide now. See United States best (1972), Congress 18357 1091, 38 F.R. and Rivera, supra, F.2d at 513 531-532. amending 1114 § around to get did Admin “Drug Enforcement substitute accepting proposal of the of to Instead of Narcotics “Bureau for Attorney Cummings General in 19346 to istration” chapter Code, with in 103 of title 18 posed now dealt would New Federal Criminal see Final “special bill: Report be retained under his maritime of National the Commission on Reform 201, jurisdiction (section 2111); and territorial of Federal Criminal Laws § Comment at (section 2112); property-of (1971) (in discussing the States p. proposed United 15 new Deposit Corporation jurisdictional treating property Federal Insurance banks basis for (section 2113); (section 2114).” against States) and the mails the United noted crimes present coverage spotty was somewhat Attorney to the General’s letter chair 2112, dispersed: “Title 18 for exam- § U.S.C. Judiciary the Senate Committee has man of robbery ple, property belonging limits to to the States, reproduced in Ladner v. United been States, while 2114 United deals with the § 169, 174-75, 209, 79 3 L.Ed.2d 358 U.S. mail.” Senator McClellan’s memorandum on and, recently, (1958), very in United States 199 history aspects the and various of his Pro- 680, 1255, 671, Feola, Code, Challenge posed of a Modern Feder- L.Ed.2d 541 Code, Hearings on Reform of al Criminal saga Federal Criminal Laws Before the Sub- of and the incredible § the 7. The com- unintelligible plexity on distinctions comm. Criminal Laws Procedures of in the Comm, Judiciary, Cong., coverage the Senate 92d of the assault-homicide sections at- Sess., 1, 21, (1971), urgent part at test need a new 1st discussed Criminal Code, supra. robbery note 5 instances in which the offense of see 26, The court construed this to mean: Drugs” until October Dangerous 93-481, 5, 88 1974, Stat. see Pub.L. Basically, reorganization when a the as- 1456, nearly three months after place, 907(a) takes section continues in Agent sault on Shea. existing effect laws prior reor- A problem ganization. Any similar had arisen when the statute relating to an Treasury’s Bureau of agency functions of and enacted before the effec- Narcotics, reorganization which had been on tive date of the list of that 1114, to the BNDD agency were transferred has the same effect as if there Reorganization Plan No. of reorganization. Thus, had been no 8, 1968), 33 (effective agents F.R. April special Drug Enforce- Hasiwar, 1367. In United States v. ment Stat. Administration fall within (S.D.N.Y., May 1970), 69 Crim. ambit section by virtue of. ruled, reluctantly Bonsai in an un provisions of section in the same reported opinion, an indictment agents manner as did the special charging an assault on BNDD special the Bureau Danger- Narcotics and Drugs. in the interval between the trans- ous agents fer of functions and later amendment of 497 F.2d 1372. This seems to us to be be Although 1114 must dismissed. interpretation a reasonable and to accord judge expressed hope legislative with what history there is appeal, would it did not. Government respect predecessor statutes the problem presented by When 907(a), which was enacted part from the BNDD transfer functions 1966 codification title 5. Act of circuit, Judge DEA arose in another September Pub.L. effect, same stating Noel ruled to the H.R.Rep. Stat. 378. See No. 81st purport 1114 “does not to cover that § (1949), Cong., 1st Sess. 1949 U.S.Code agencies those enumerated”. successor Cong.Service, pp. 1391 (emphasis Irick, 369 F.Supp. added) (“This section savings contains (S.D.Texas 1974). However, his provisions status, to the aft reversed, judgment was reorganization, statutory er a provi for certiorari denied petition . . having sions . relation to nom., Peel v. United sub agency or function affected such re 1325, 43 L.Ed.2d 423 organization.”); H.R.Rep. No. 76th having opinion been rendered Cong., (1939), quoted 1st Sess. 6 in 497 Congress before amended 1114 to (The savings provision “pro F.2d at 1372 make the substitution. . vides for the survival of laws reorganizations.”). in connection with of Judge The cornerstone Ains Moreover, nothing we in legisla see the opinion worth’s for the Fifth Circuit is history of the tive 1974 amendment that neither district court decision had 1114, which the substituted DEA for 907(a), taken account of 5 U.S.C. deal BNDD, 93-1442, H.R.Rep. the see No. ing reorganizations with executive Cong., 2d Sess. in 93d 1974 U.S. laws, entitled “Effect on other pending Cong. Admin.News, 5910, Code & pp. legal proceedings, and unexpended ap 5914; Cong. Rec. S. provides propriations.” pertinent This in 11, 1974) (daily July (remarks ed. of Sen- part: Cook); Cong. ator Rec. H. 10578 A . . statute enacted . (daily 1974) (remarks before Rep. ed. Oct. the effective date of the reorganiza- Rogers making express to the reference tion, has, except to the extent opinion), rescind- Irick district court that would ed, modified, superseded, or made in- a constitute ratification of the district applicable by authority or under opinion court in Irick. That decision had function, law the or abolition a yet not been reversed when the Senate the as if the reorganiza- effect same acted the apparently reversal was tion had not been made. brought not attention of the frolic, acting if he purely the dis- was a approving pri than as Rather House. . Irick, vate citizen . .” Congress in While submis court decision

trict sion issue to the up avoiding jury may have tidying matters if, unnecessary been on undisputed resort to 5 U.S.C. for future need evidence, the on Agent assault Shea oc 907(a) by Government. curred engaged while he was in or was issue, to the we Returning basic performance account of his by setting paragraph out a begin duties, official such submission has been Manual, Agents a of the DEA 6641.5 approved inferentially in opinions, some Violations “Arrests for section entitled Frizzi, see United 491 F.2d Jurisdiction,” pro which DEA Outside 1974); 1232 (1 Cir. United States v. vides: Michalek, (8 443 Cir. happen agent to witness a an Should and doubtless is the wiser course. (whether is on or violation he State duty) expects in Unit opinion off the Administration on our rely sides Both Heliczer, 244- as a law him to take reasonable action F.2d ed States denied, to prevent Cir.), officer (2 enforcement cert. (1967). apprehend crime the violator. The and/or 18 L.Ed.2d only or comfort in the discus- policy applies This to felonies finds Government which, ap correctly it pp. violent misdemeanors. It does sion that, point ply disposes to traffic violations or other minor of defendants’ says, make been able to an Agent-Shea offenses.8 if making arrest, have been he would that, jury judge instructed law and New York under One, it must to convict on Count order gives ordinary York that New power that at time the assault Shea find felony. an arrest make citizen performance of his engaged in “was 183(2); id. Crim.P. § N.Y.Code See ex- duties”, jury read to the this official Viale, 177; F.2d United States (omitting the last from the manual tract denied, Cir.), cert. 599-601 stipulation sentence), and noted 10 L.Ed.2d 199 felony a violent that a or defendants finds assistance also taking place inside misdemeanor quoted statement: oft Anderson’s also instructed store. He liquor acting is agent The test is whether law, not have would matter of Shea engaging or compass within that scope of his official within the been of his own. frolic personal personal engaged if he “was duties expects Administration him to take reasona- full reads: section ble a law action as enforcement officer to OUT- FOR VIOLATIONS 6641.5 ARRESTS prevent apprehend the crime and/or the vio- 508(3) Section JURISDICTION. SIDE DEA policy applies only lator. This to felonies or “any employ- provides or officer the CSA apply violent misdemeanors. It does not Attorney designated Gen- ee of DEA traffic violations other offenses. minor may arrests without warrant. make eral specifically peace Unless authorized as a of- against any the United For offense A. law, agent’s authority ficer under State presence, or in his States committed ordinary these situations is that of an felony cognizable B. For under agent’s citizen. A detailed discussion of the probable if he has of the United laws authority to make arrests under various person that the to be arrest- to believe cause Appendix State laws can be found in 66A. committing or is a felo- ed has committed fully support The Administration will the ny.” agent any by reasonable action taken happen agent to a Federal an witness Should him in these situations. duty) (whether he is on or off the violation only self-protection Firearms be fired will expects take reasona- him to Administration others, protection pre- or for the officer a Federal enforcement action as ble fleeing destroying vent a violator from or apprehend prevent crime and/or the the evidence. authority. the above under violator happen agent to witness State Should duty) (whether he is on off the or violation Agent law, 373 F.2d at 245. Whatever Shea 508(3) eral Comprehensive § frolic, doing, it was far from Drug Abuse Prevention and Control Act proved. events Defendants call atten- Pub.L. No. 21 U.S.C. previous tion to the sentence to which 878(3) (authority § to make arrests with compass” word “within that refer. out warrants in certain grant instances There “ Anderson said that ed in agents terms to BNDD and trans . ‘[e]ngaged perform- ferred to DEA agents by Reorganization [the] simply ance official duties’ is acting 1973, supra, Plan No. 2 of see 21 U.S. scope within the agent of what is C.A. 878 Note Supp.)), to arrest employed They argue to do.” for any offense against the United Agent “employed Shea was to do” what presence States committed in his or if he Attorney designated General had probable as has cause to believe that DEA’s responsibilities.9 official They person to be arrested has committed or that, say Agents’ insofar as the Manual is committing a felony, arresting for this, goes beyond the use of offenses, it is a boot state as stated in the following strapping operation by prosecutor paragraph of that section manual, of the enlarge which cannot the scope of he will act in arresting for state offense Indeed at trial counsel for Thomas char aas law enforcement officer with the acterized the passage question as a authority of an ordinary citizen unless “general mere agent admonition to an given the state powers has him the of a agent that as an expected he is to be peace officer.9a good citizen.” We do not find Heliczer so dispositive claimed either side. appear accept, Compared as we Defendants ours, must, that case applies to was an they easy 6441.5 one. think The agents narcotics there and violent misdemean- were arresting all felonies state Martin, previously ors; argued that the ref- they have not arrested for a federal narcotics violation “a violation” erence in 6641.5 to State released bail, who had of a state narcotics threatened to is violation kill the informant However, whose they attention to statements call had led law. previous his arrest. significant dif- The consider to be second they what arrest was in performance agents’ language between offi- ferences cial duties in the in text and the narrowest quoted 6641.5 above sense of that term, and no less so sentence of because in language preceding the ab- sence of a section, supra. dif- warrant see note 8 The arrest had to be based on New significant York law. seem to us ference does not same is true of other cases cited merely context of this case. Govern- ment, such as United States v. agent’s to the fact Cho Po calls the attention Sun, (2 Cir.), 409 F.2d 489 denied, for federal cert. in contrast to arrests offenses, he authorized fed- L.Ed.2d where is 9. 28 C.F.R. §§ pro- officials, 0.100-0.104. provision Section 0.101 of narcotics intel- vides: State, Federal, ligence to or local official Specific the Administrator determines has le- § 0.101. functions. gitimate to such official need to have access Subject general supervision to the intelligence. Attorney General, and under the direction of Deputy General, Attorney the Adminis- agent argue that since Defendants 9a. responsible trator shall be for: only “expected” or to intervene whether on off (a) development implementation employed duty, he is not it is clear that program of a throughout concentrated so, importance required We attach no to do Federal Government for the enforcement of “expect” rather than of the word to the use drug cooperation Federal laws and for stronger the word is used verb since some governments State and local in the enforce- for federal violations as to arrests drug ment of their abuse laws. there is little violations and as for state (b) well development The and maintenance of agent employed to question the is arrest that Intelligence System National Narcotics violations. cooperation federal for Federal, State, and local course, the basis of Martinez, distinguished, v. 465 be

(1969); United States aof duties may be the that, whatever 1972). also Unit (2 Cir. See F.2d vi- preventing to assist Michalek, officer supra, 464 F.2d federal ed States in- laws, cannot these hand, state olation of defendants’ the other 442. On to circum- deliberately effort agent is an “what the clude reading words of the However, the order. court state begs question the vent both to do” employed beyond this: far language went court’s apply it would since too much proves and where, g., a e. DEA case equally in a the defendants was At the trial of on a an assault federal agent witnessed any cattle of the shown that of the not judge. suffering from tuber- defendants to us not cited an old have Defendants disease, communicable culosis or other them, favorable highly is case that exportation any interstate that dicta, Whipp United in its least such live stock was transportation of 1931),although (6 Cir. Thom defendants, that contemplated by the brought it to the counsel had as’ trial Secretary Agriculture had rea- the of sentencing. Ap at the attention judge’s that such diseases exist- son to believe under there had been convicted pellants locality, any quaran- in that or that ed prede one of the 18 U.S.C. § then pursuant to established tine had been as forcibly for of cessor statutes powers of the the above-mentioned etc., resisting, employee an of saulting, Agriculture. Under such Secretary of Husbandry Animal of the Bureau in vain for we search circumstances his duties. The facts were execution duty in the any federal evidence of provided statutes for the Ohio unusual. testing inspector of which performance for infectious diseases of cattle Industry Animal was Bureau of author co-operation for federal is whether and it immaterial engaged, purpose. Federal statutes ities for employed he was at the time or not authority provided Depart for the also a state law or in the execution of investigate Agriculture ment of officers, even state assistance outbreaks of such diseases in suppress employment arose vir- such though instances. Defendants ob certain the Bureau his connection with tue of proposed by jected to the tests Ohio offi he was Industry, provided Animal cers, injunction sought a state court virtue of acting solely under per the state veterinarian from restrain objected that it is state laws. is tests, and forming certain secured tem necessary particular act not injunction. In an effort avoid porary agent is en- upon which the federal this, state officers the effect of obtained specifically be enumerated gaged shall inspector from the Bu services of it is Congress, but in an act of Husbandry to accompany of Animal reau action alleged if the official sufficient during proposed tests to create them governed requirement aby lawful be inspector impression whose au- Department under acting on behalf United States. acting. officer is thority the recited in the indictment oc The acts Birdsall, when defendants resisted the at curred bemay 58 L.Ed. 930. This complete the tests. tempt conceded; act must particular but responsive to some nevertheless be court was unable to find that The particular of fed- equally requirement provided statute for a basis federal authority, in order to make such undertook; eral inspector “duty” which performance in the feder- act one rather, for the authority mak- general policy A mere of mu- duty. al such state statutes. ing tests enough. co-operation tual is therefore held that since the court argument in the as- fallacy lies performing was not federal inspector acting sumption because he be could not convicted duty, appellants officers, co-operation with state readily can The case resisting him. provides accordingly for law Section requires because the federal such in excess of punishment that which co-operation, of all acts the federal in- impose (compare states would spector necessarily must be done in the with, g., U.S.C. e. Cal.Penal performance duty. a federal 241) Code for assaults on those in- is really Whether this so or not de- investigation in the volved or enforce- upon pends per- whether the act is ment of federal laws. formed in the administration of a state law, upon or federal the initiative aggravated Since some state assault aof state or federal executive. The equally statutes did include federal fact by mere virtue of established happened who law enforcement officers comity a procured federal officer was crime, engage suppressing state to present to be right demand the to presumably Congress would have meant make this test does not alter the fact difficulty embrace them. is to Our only authority for making Judge Hufstedler considered her thesis such tests can be found the state compel knowledge the conclusion that to statutes, except and unless it be in of the federal status the victim was connection with interstate commerce. element of the offense—a an essential rejected by which was us position Id. at see also at over id. 498. To even years ago. ten United States v. Lombar things up, the Government likewise has dozzi, denied, (2 Cir.), cert. not cited it, helpful case most wit, 13 L.Ed.2d 185 decision U.S. bearing unusual name rejected now been and which has Top Walks on v. United Court, Supreme (9 Cir.), denied, F.2d 422 United States cert. Feola, supra. L.Ed.2d 170 This sustained a conviction for assault on Although Feola addressed this a federal officer where the defendant problem, language in the opin- different being arrested for a state law viola- helpful is the Government. The ion tion officer, federal and a state who spoke of the assault statute in Court “cross-deputized” each other. The Blackmun terms. Mr. Justice said broad case, however, can distinguished be point: at the basis that the arrest was being made Congressional goal Fulfillment policeman of the Bureau of Indian protect required federal officers Affairs on an reservation, Indian where now, 1934], then does [in state officers could not make an arrest. highest possible degree certainty If we were able to follow Judge that those who killed or assaulted fed- Hufstedler’s concurring opinion in Unit- justice. brought eral officers Fernandez, ed States v. supra, 497 F.2d at 95 S.Ct. at 1263. At 745, this would fairly afford a straight point another he said in a footnote: path toward affirmance. Her thesis was as follows: plausible, think, It is more we to con- Congress clude that chose not to en- Probably motivating the enactment of trust to the States sole responsibility the assault portion of section 111 was attacks, the interdiction fatal or congressional desire to gap fill a not, upon federal law enforcement of- defining state laws aggravated as- ficials—a matter essential to the mo- saults: state laws mandated increased rale of all law federal enforcement

punishment only for assaults on state personnel and central to the efficacy peace (cf. g. officers e. People v. Gar of federal law enforcement activities. (Utica City field 1970) Ct. 63 Misc.2d 830; N.Y.S.2d Cal.Penal 685 n. Code 95 S.Ct. at 241, 830.1, 830.2, 830.6(a)); reasoning interpretation §§ His that an if the person officer, requiring assaulted was federal 111 as not scienter with re- the assailant punishable spect would be to federal status was “no snare for simple unsuspecting” equally under state law for applicable assault. yards away. committed a few that Federal here; no illusion defendants had the agents rely heavily narcotics must for “legitimate con- engaging they were officers, help on law enforcement we know state important, now Most duct.” shown, g., objective as is e. in United the States 111 has Feola that from Heliczer, supra, 373 F.2d at where law enforcement federal protecting of they angry had to be rescued from an as some had merely, and not officers by twenty thirty mob a detail of v. United New Ladner thought from policemen, City York and in United at supra, Rivera, supra, at States law enforcement.10 only federal they help the where needed of New to Endeavoring place ourselves City police fleeing a pursue par York Congress that en position in the in an ticipant attempted rip-off during predecessors of acted the §§ supposed what had been to be a sale of of 48 Stat. later reciprocation narcotics. Some surely is amend Congresses approved that have If Agent in order. Shea had a heard ments, would wished think we have we York City policeman New in the liquor in or vague language engaged “while the calling help, surely store for he would performance the of his on account of greater duty have had a respond than to be read include con official duties” ordinary the passerby. We see no suffi Agent Shea’s, as least duct such when, cient distinction the fact that here the here, officially he had been in as agent acted without such call. If a DEA “expected” of him and structed agents or other federal law enforcement the DEA would stand back of him. they properly officers do what are ex caution of rather whimsical Con pected to do the enforcement of state limiting catego gress laws, they criminal should have the same protected employees11 federal ries protection they federal would receive in compel not does conclusion that performance of their other duties.13 scope protection was to be nar We read the by statute a direction rowly Congress using was not limited. Congress they do. a “duties” in strict the word Hohfeldian thinking It was in terms of sense.12 ought officer do

what the because of Alleged charge III. error in the Agent being an officer. Shea had been respect to Count III. trained law enforcement at the ex stated, including pense public, citizens of As III was Count un York, such as the victim lawful use of a firearm in the New commis robbery felony, store here. sion of a federal liquor opinion Public U.S.C. 924(c)(1). Believing been properly would have offended if the evidence Agent Shea had continued to sit in showed that revolver was Shea’s robbery Thomas, being judge chair while a firearm used barber’s “ Stewart, dissenting, ‘right’ ‘Duty’ Although (1894): Justice are correlative Mr. 10. invaded, right duty Feola as a “revisionist treat is is characterized terms. When Ladner, Co., violated,” subversion v. Railroad indeed and from McGhee ment” 706, 709-713, Mr. Justice “The 60 S.E. 912 N.C. U.S. at Ladner, evidently Brennan, properly imports ‘duty’ expression a determi- who authored joined obligation owing, regard person he the Feola is so it since whom the did not majority. nate obligation.” who owes one as well Hohfeld, 38,' Legal Conceptions Fundamental Attorney g., or Assistant a United States 11. E. 94-95 Attorney Attorney not the but Agent holding Shea that the assault 13. Our Attorney the Assistant Gener- or even General necessarily not entail 111 would came within charge Division of of the Criminal inal holding if the intervention a similar Justice; judge Department a federal but not persons 1114 whose duties are listed in clerk, court etc. federal sense, g., in its narrow e. enforcement law quotations M. S. Lake Shore from & See his Department designated employees of the Kurtz, Ind.App. 37 N.E. R. Co. Agriculture. charged jury could convict on still does not follow. This be- elusion if, if, Count III but ground found that of an alternative for af- cause revolver was used in committing firmance advanced the Government. more of charged or felonies general principle While the is One, Two, Four or Counts Five. long ago Since v. stated in Nicola United jury acquitted Five, 780, States, (3 on Count 1934), it ob- 72 F.2d 787 Cir. viously predicate did not use this as a given two are to the “Where instructions felony for conviction under Count Three. prejudicial jury, one erroneous correct, impossible it is to tell the other The contention stressed by de jury which one the followed and it con- fendants brief was that it was error error,” stitutes reversible see also Mills to include Four, Counts Two and both States, v. 164 17 United U.S. involving robbery the property of the 210, (1897); L.Ed. 584 Frank v. States, robbery United since the States, 559, (10 United 220 F.2d Cir. complete revolver was before Thomas 1955); States, v. United 230 F.2d Smith it, requires used and that this reversal (6 935, subject this is jury might since have utilized one or exception gives when the verdict as- the other of those counts as the felony prejudice surance that no in fact oc- predicate. agree We with the Govern Bottone, curred. United States premise, ment stated, as so is 389, (2 denied, Cir.), 394-95 cert. F.2d unsound. To constitute robbery, there 514, 87 S.Ct. L.Ed.2d “must be both a taking and a carrying (1966); Baratta, United States away of the property.” Clark & Mar- (2 denied, Cir.), F.2d 225-26 cert. shall, 12.09, Law of (7th Crimes § at 882 293, 21 393 U.S. 89 S.Ct. L.Ed.2d 276 1967). ed. At time of the shooting (1968); Jacobs, United States v. 475 F.2d Agent Shea had given not up on the Cir.), 283-84 cert. denied sub prospect arresting the defendants and nom., Lavelle v. United revolver; retrieving his indeed he did 38 L.Ed.2d 53 give up not Moreover, thereafter. both charged merely Here Count One as- before and after the shooting, there was but, trigger sault order to heavier chance, always a small, however of inter penalties provided para the second vention other law enforcement offi graph “by assault use of a or good cers Samaritans. As said in wit, deadly dangerous weapon, to Roeder, Von finding revolver”. In the defendants (10 Cir.), vacated on other guilty charge, jury of that necessari grounds, ly required found all the facts for a con (1971): L.Ed.2d 222 viction on third count. It is thus escape phase of a not, crime is may con jury immaterial have appellant apparently argues, an event felony charged in sidered the Count Two occurring “after the robbery.” is predicate.14 also have been part of the robbery. Now, however, because of IV. Identification. having our vacated the conviction on Two, Count defendants’ premise that one The defendants claim the of the counts would not support court erred allowing Agent a con Shea to viction has become true. But their con- make in-court identifications of them15 arranged 14. Mere statement of defendants’ other com- The court to have other blacks plaint, namely, that, although judge had seated with defendants at the counsel table. language 924(c) jury (“use suggest read the Counsel for Reid seems to in his state- any felony”), of a firearm to commit his ment of the case that later district court some- phrase “responsibility” use “used firearm in how failed in its connec- to assure that ” charged persons size, general tion with the felonies “additional other same “plain counts constitutes error” under build and coloration F.R. be seated at ta- counsel 52(a), Any suggestion Cr.P. sufficient refutation. ble.” such would reflect a sugges- impermissibly important goal avoiding the all previous mis- despite identifieations, identification. a prac- continued use of photographic tive employed imposes tice such as that here agents advised 5, 1974, FBI August On a needless burden on the courts in en- been ar men had that two Agent Shea nigh deavoring answer the often un- of his service possession Ohio in rested “whether, question answerable before days later FBI three Two revolver. imprint arising from unlawful photograph of him agents showed procedure, there was al- identification Ohio; taken in man, been each which image such a definite in the wit- ready being photographs these as he identified rely he is able to on it ness’ mind that spreads photo No of his assailants.16 graphs much, any, without if trial assistance shown, was and there were ever United from its successor.” States ex line-up. no Follette, 912, Phipps v. 428 F.2d rel. 1970). (2 Cir. See United States v. suppression its pretrial hearing In Wade, 1926, U.S. again appeal, brief and the Govern (1967). may L.Ed.2d 1149 result procedure that this was ment conceded courts to free men who forcing also suggestive. While it impermissibly sure guilty are of serious crimes and could was, accept we cannot ly the concession readily proved have been to be if the law without further comment. If ever there officers had behaved as the enforcement where was case failure follow fair Supreme Court has instructed. procedures identification was inexcusa ble, quoted question While the of suspects this was it. The were in answer, ten is difficult to we have no custody, the FBI could have no had Judge correctly that Conner made men, doubt right doubt it had arrested and answer in this case. was, affirmative happily, danger Shea in no of death Agent was a trained observer who Shea disappearance. Compare Stovall v. strongest 302, had motivation use his Denno, 1967, no doubt that he (1967). talents and entertained We 18 L.Ed.2d find little effectively. done so While the time short of incredible the Assistant short, range was he was at close Attorney United States at ar admitted defendants in store and gument, years six since Simmons lighting, both in the store and on the 377, 382-86, v. United 390 U.S. street, good. quite Importantly, was and 19 L.Ed.2d 1247 S.Ct. decided, was great prosecution credit of the to the Department Justice court, and the district less than three regulations not have issued should elapsed months between the incident respect to photographic identifications Compare United the trial. agencies law enforcement under its con- Wade, ALI, at supra, 388 U.S. 87 S.Ct. trol. A Model See Code Pre-Ar- Procedure, Finally, photographs, the Polaroid raignment 160.1(2) (Tent. profiles, that had been shown to 1, 1974). both April Apart Draft No. from not a close misreading venireman selected It is clear that de- if the of the record. even requirement Reid, that initially no there is to find such counsel undertook match for fense persons and, line-ups must be sur- apprised the accused when counsel the court even appear- nearly anyone, by persons identical inability, to find the court sent of his rounded may ance, be. try that deputy re- desirable to find veniremen who clerk however Of three the defendants. sembled point found, of the fact one and some counsel for Reid selected make defendants clerk 16. The again him these supervisor The individual se- showed two. the other dismissed Shea’s during the tri- before the course weeks photographs al; enough, table three lected sat at counsel some answers, reasonably ample opportu- proceedings. Counsel had the nity Government resembling viewing, than persons of not more defendants this to find necessary testing seconds, in order to make identification purposes the in-court five being prof- photographs furnished to by Agent he knew would be Shea which sure that the defense covery pretrial something responsibility dis- that was his aid of defendants’ fered— Moreover, judge. had seen. Shea of the district the ones that not that Agent indistinct, Shea were so as the tion. United States ex rel. Gonzalez found, judge they would add little Zelker, 477 (2 F.2d Cir.), 803-04 previous to his opportunity for observat nom., cert. denied sub Gonzalez v. Vin- ion.17 cent, 94 S.Ct. (1973); L.Ed.2d 158 By- States v. this, Beyond although all we need not num, 503-04 it, rely on is the fact that we know there vacated on grounds, other was no misidentification here. This is L.Ed.2d 209 Thomas; clearly so with judgment of conviction is af- presence glasses of his liquor except firmed store, convictions and fingerprints his on the stolen sentences on Count Two are vacated and stationwagon, Buick and of Shea’s serv- the district court is directed to dismiss ice revolver at the site of his apprehen- that count. sion in perpetra- Ohio identified him as a solidly tor of the crime more than the MANSFIELD, (concur- Circuit most unblemished identification testimo- ring part dissenting in part): ny could have 1 Wigmore, done. See Judge Friendly’s I concur in character- 1940). (3d Evidence ed. cir- thorough istically scholarly opinion evidence concerning cumstantial Reid is except portion for that which reverses quite not strong. that But we know defendants’ convictions Count 2 on on store; that there were two men in the gro'und the that 2114 is to “limited that Reid who, was identified as the man having postal crimes nexus.” From an with accomplice unidentified stole the I respectfully this must dissent. I would Pontiac, appellants in which were arrest- affirm the convictions on Count 2. ed, days several before the robbery; and that he had get tried to rid of Thomas’ plainly prohibits 2114 Section defend revolver in Ohio. The likelihood that he to postal ants’ conduct and is not limited was the man who had been with Thomas majority’s offenses. To reach the view liquor the store was overwhelmingly princi one must stand well-established greater than imaginative counsel’s sug- legislative ple interpretation on .its gestion might that he joined have Thom- Although observed, head. it has been trip as for an auto sometime between jest, may some somewhat have a the assault the arrest. We would tendency “go only to the statute” to not wish this discussion to be understood history legislative “when the is doubt implying Agent if Shea’s ful,” in- States, v. see Greenwood United tainted, court identification were its ad- 366, 374, 410, 415, 76 S.Ct. 100 mission would have been harmless error (1956) (Frankfurter, J.), L.Ed. 412 the evidence, because of this other cf. United recent of a panel decision of this court in Zelker, States ex rel. Robinson v. 468 Rivera, (2d United 513 519 States F.2d F.2d 1972), 165 Cir. denied, cert. upon by majority, relied the U.S. 93 S.Ct. 36 L.Ed.2d went to an greater even extreme. (1973), although very likely it would legislative history substituted dubious have been respect to Thomas and unambiguous plain, language for the have being would come close to so with Despite suggestion the statute. respect to Reid. Rather the rule in this “plain meaning” that the Rivera doctrine circuit is that other evidence connecting statutory interpretation of Caminetti may defendant with the crime be con- 470, 485, United U.S. sidered on the issue whether there was a (1971), 61 L.Ed. 442 has S.Ct. be substantial likelihood of misidentifica- outmoded, very come it remains much event, gave jury during Conner extended er circumstances witness’ charge closely, possibility excellent to to what fac- incentive observe and the ought evaluating photographs tors it to consider in seen between the time of in-court identifications, including opportu- the witness’ and the in-court commission of the crime iden- nity defendant, lighting may to observe the and oth- have affected the tification identification. accord, Holly Hill Fruit Addison v. In See, e.g., and viable. alive 607, 617-18, Inc., Prods., Oregon, 366 U.S. 88 L.Ed. where 6 L.Ed.2d Court, Black, speaking for Justice con- in his Justice Jackson stated As stated: Schwegmann Bros. v. Calvert currence provi- Corp., “Having concluded (1951): 95 L.Ed. unequivocal are clear and sions face, to find no need re- their we on history legislative “Resort history of the legislative sort to the Act is justified the face where placed has such Act. Since State then I ambiguous, and inescapably history, upon that how- heavy reliance Com- go beyond we not think should ever, appropriate deem we do are presumably reports, which mittee is at history this best point out that prepared. carefully well considered true, It is State inconclusive. have deny that I sometimes I cannot out, Representative Ran- points rule. But se- against that offended kin, as of the Committee Chairman from floor de- casual statements lect handling the bill on floor bates, always distinguished for House, during expressed his view for mak- accuracy, as basis candor bill course of discussion Congress ing up our minds what law not ap- 1941 Act would floor that our- to enact is to substitute intended incompetent ply insane veterans Congress in one of its for the selves valid contracts. But such state- make The Rules of the important functions. ments, they alone, when stand even Senate, with sanction House and regarded been as suffi- have never Constitution, read- require three ciently compelling justify deviation Act each House before ings of an language of a statute.” plain from the intended, is I enactment. That final omitted]. [Footnotes it, that each House take to make sure passes is and passing it proper procedure time-tested is first knows what wants, is it that what enact- guided what by to consult the statute and be formally writing. meaning, legisla- reduced plain its with resort to ed Congress to sum the business of history only ap- It is tive when statute legislation.” its its own debates in pears up ambiguous. course, Riddell, 569, is, per “There no more also Malat See (1966); evidence purpose 1030, suasive 102 16 L.Ed.2d 86 S.Ct. by than the words which the Revenue statute of Internal Commissioner legislature give expres 563, 571-72, 85 undertook Brown, 380 U.S. (1965). sion to its wishes. Often these words 75 1162, 14 L.Ed.2d are sufficient and of themselves to slightly am is even 2114 Section legisla purpose determine the of the in clear and provides plainly biguous. tion. In such cases we have followed language unequivocal “[w]hoever plain meaning.” United their States lawful having person any assaults Inc., Ass’ns, Trucking v. American 310 any mail control, custody of or charge, 534, 543, 1059, 1063, 84 proper money or other any or of matter (1940). L.Ed. 1345 omit [Footnotes States, ... or ty of United ted]. matter, or mail person of any such robs See Browder v. United property 312 or other money, any ” 335, 338, 61 599, 601, added) is 85 L.Ed. (emphasis States United (1941), where the Court up stated: to 10 punishable of a crime guilty by a man offense plain “The for the first years meaning of the words of the custodian if term datory 25-year the act covers this use. single No ar- jeopardy put in his life gument or has wounded has more weight in statutory Congress If weapon. dangerous interpretation by a than this.” [Footnote prohib offenses limit the had wanted omitted]. 1948 there general was not a more any 2114 to subdi- postal ited assault on a § vision of the Code into which any upon employee person § or assault (formerly 320) placed. could have been holding money § or other property in the significant, instance, It is for prior custody Office, Post to 1948 the making statute it a crime to surely it knew how to do so. It has kill various classifications of federal offi- repeatedly enacted laws limited to of 253, cers employees, “mail,” fenses U.S.C. now § “letters” 1114, U.S.C. was to be “packets,” found in § U.S.C. §§ 1695, 1696, Chapter 1698,1700, Against entitled “Offenses “post Justice,” being Public there chapter no depository office or authorized matter,” entitled “Homicide” until 1948. mail 18 U.S.C. a “letter § box,” receptacle” “mail or “authorized Assuming that ambiguous, 2114 was § depository matter,” for mail 18 U.S.C. not, which it is and that legisla resort to bags,” “mail §§ U.S.C. history tive permissible pur for the 1706, “property used the Post § Of pose of resolving the ambiguity, that his tory provides scant assistance to the ma Department,” fice 18 U.S.C. § funds,” “postal a “let U.S.C. jority. If anything, it reinforces the carrier,” ter or mail U.S.C. statute’s plain unequivocal language. “postmaster” or “Postal Service The majority heavily upon relies Employee,” U.S.C. § statement of Congressman, Donald Friendly’s I share view that the Dobbins, C. on the floor Congress, 320) (formerly 1948 transfer of during bill, debates on the to the effect by the Reviser of the Criminal Code its purpose was protect from the subdivision of the Code entitled property in the custody of postal offi Against “Offenses Postal Service” cials. Cong.Rec. See 79 If Chapter “Robbery entitled and Bur- this was the purpose, sole one naturally glary,” did not enlarge scope why asks the bill did itself, not so limit statute, which had been enacted in 1935. like scores of statutes that are so limit At may best indicated that the Reviser ed. Aside from the failure to take this have believed that be- course, reached which would be immediately ob yond postal employee an assault on a or vious to the draftsmen, least skillful of postal property. custodian of But it is to attach controlling significance to one equally apparent place- the earlier debates, statement from floor as Justice Bros, ment of the 1935 statute in the subdivi- Jackson observed Schwegmann Against sion entitled “Offenses Postal Corp., v. Calvert supra, is a flimsy rather Service,” to which Friendly at- basis for interpretation. Indeed, an ex significance, taches did not restrict change which occurred on the floor be- Indeed, scope of the statute. prior to Congressmen tween and Wolcott Truax revision, the 1948 the Code did not have with respect to the bill on the same date classifying subdivision crimes in the evidences a pass desire to a broad bill. generic broad terms later used suggestion A by Mr. Truax that the bill (e.g., embezzlement, theft, 1948 revision penalize should the burglarizing per- of a extortion, gambling, homicide, fraud, son’s home rejoinder drew a by Con- etc.), rape, much comprehen less in the gressman jurisdictional Wolcott that for sive proposed and coordinated terms by reasons “the bill is confined to assaults on the National Commission Reform of on Federal law-enforcement officers.” Federal Criminal prior Laws.1 Thus to Cong.Rec. (1935). 79 8205 204) suggestion mails, majority’s the Brown 2X14 § deals with “the and interpretation property.” Furthermore, of 2114 is § other course, federal Commission’s of adopted by prohibited it does not bear with that 2114 § accord adds an offense not 15) (at p. by 2112, i.e., Although robbery scrutiny. § the Commission that results in the in- referred, discussing jurisdictional for bases danger- fliction of a wound or that involves code, dealing weapon. as 2114 ous § federal criminal accurately (p. mail, more it later stated with Reading according plain repeatedly to its § has Court Supreme language for serves the unequivocal source and ad- the authoritative stated lending consistency in the purpose lies ditional of statute of a interpretation bill, “rep dealing which federal statutes the offense on the report committee robbery government collective of violent of a em- considered resents ployee. majority’s in Congressmen Under strained understanding of those proposed studying interpretation of the violent at- drafting volved Allen, tempted robbery person having U.S. of a cus- Zuber v. legislation,” tody postal carry of property 24 L.Ed.2d would 186, 90 S.Ct. passing mandatory 25-year from sentence whereas the distinguished (1969), as member, robbery person successful having of of comments 367, 385, 88 S.Ct. custody government money of O’Brien, other or Schweg (1968); property punishable be by would a maxi- 20 L.Ed.2d Corp., supra, years imprisonment 341 mum of under v. Calvert Bros. mann by the offi- or years 745. Here a maximum of 10 at (and House and Sen- assault under then if of both reports cial “deadly dangerous to the bill a weapon” or ate Committees used). meaningless was intro- This disparity the bill although would disclose by the Postmaster be request holding eliminated that a violent duced the Com- robbery govern- a custodian of any hence referred General (whether and Post Roads of property ment it be mail on Post Offices mat- mittee understood ter House, or other draws property) both committees the same each bring penalty. within the be “to purpose its Apparently the factor that the crime Code the Penal provisions of persuading panel most force in to rob custo- attempting or robbing interpretation to reach its moneys.” H.R.Rep. Rivera of Government dians follows, majority here (1935); 1st which Cong., Sess. 74th No. position by taken the Solicitor Cong., 1st was the Sen.Rep. 74th Sess. No. of the United States in United described the General The bill Hanahan, (7th 442 F.2d 649 Cir. one “Safe- States Report as Committee House rem’d, 1971), vac. & of Government guarding Custodians 38 L.Ed.2d Property’’ Sen- Moneys and 2114 was intended be “Providing for effect Report ate Committee post offices or limited to “robberies of Robbing or Crime Punishment employees,” promptly which was postal Custodians of Attempting to Rob in United by the Ninth Circuit adopted Id. Property.” Moneys Government (9th Fernandez, need for States Thus, although the immediate 1974). dealing with an Were we from a desire may have arisen the bill or rule interpretation of a statute General to of the Postmaster part governmental agency upon based its postal on custodians subject assaults adminis specialized expertise in highly those penalty upon same as funds to the it, contempo recognized tering interpretation or an mail, it was custodians with the enactment of stat- any custodian of raneous upon an assault that rule, governmental agency’s should be ute or government property any Indeed, might be entitled to considerable even the view punishable. equally Clifford, 132 Thompson v. U.S. weight. General re- of the Postmaster letter 351, 408 F.2d 166-67 reports App.D.C. committee to in the two ferred Allen, supra, (1968); see, e.g., Zuber v. the bill was places in two stated 314; Perine “robbing 90 S.Ct. punish crime of 396 U.S. designed Co., Inc., & 509 F.2d of William Norton to rob custodians attempting or (2d 1974); v. Unit Cir. Soriano moneys.” Id. Thus neither Government (9th 494 F.2d Cir. ed General nor two the Postmaster Dairies, Wirtz, Inc. v. 1974); Foremost the crime believed committees (5th 659-60 cert. or postal employees be limited to should nom., 946, 88 sub denied postal property. (1968). But, 19 L.Ed.2d 1134 General, due to the Solicitor he

possesses no or- specialized unusual

knowledge language history about the entitling opinion his

special Moreover, deference. his inter-

pretation years follows almost 40

amendment of 2114 which concerns us

here. The members of this court are in

just good position as the Solicitor interpret

General the statute and' when,,

need not defer to his construction here, “compelling there are indications wrong.” it is Red Lion Broadcast FCC,

ing Co. v. (1969); 23 L.Ed.2d

see, Co., e.g., Espinoza Mfg. Farah 86, 93-95, 38 L.Ed.2d For the reasons stated above case,

his view incorrect in this influ as it apparently

enced the harsh- 25-year

ness of the mandatory sentence compared

called for 2114 as 15-year imposed

the maximum term

violation of Undoubtedly this strong

view leading influence in

the Fernandez court into Sensing error. rely upon legislative could not

history interpret unambiguous

statute, the Ninth Circuit in Fernandez problem by labelling

solved the

“ambiguous.” reading A fair

statute, however, discloses that it is not

in the ambiguous. least bit LABOR

NATIONAL RELATIONS

BOARD, Petitioner, DIVISION,

BOSTIK USM CORPORA- TION, Respondent.

No. 74-1599. Appeals,

United States Court of Circuit.

Sixth

June

Case Details

Case Name: United States v. Daniel Reid and Theodore E. Thomas, Jr.

Court Name: Court of Appeals for the Second Circuit

Date Published: Apr 24, 1975

Citation: 517 F.2d 953

Docket Number: 771, 772, Dockets 74-2598, 74-2599

Court Abbreviation: 2d Cir.