UNITED STATES of America, Plaintiff-Appellee, v. James HILLSMAN and Clinton Bush, Defendants-Appellants.
Nos. 75-1087, 75-1088
United States Court of Appeals, Seventh Circuit
Sept. 5, 1975
Argued June 2, 1975. Certiorari Denied Dec. 15, 1975. See 96 S.Ct. 570.
While the facts from which to infer that Dellamano witnessed the shooting are not quite as detailed as in Poland (otherwise a very similar case), we think they were a sufficient predicate to meet constitutional requirements.
The other matters set forth in the petition for rehearing were fully considered in the course of the appeal, and do not warrant a rehearing.
Petition for rehearing denied.
John R. Wilks, U.S. Atty., Frank J. Gray, Asst. U.S. Atty., Fort Wayne, Ind., Fred W. Grady, Asst. U.S. Atty., Hammond, Ind., for plaintiff-appellee.
Before MOORE, Senior Circuit Judge,* and PELL and TONE, Circuit Judges.
PELL, Circuit Judge.
The defendants James Hillsman and Clinton Bush were convicted by a jury of assaulting a federal officer, in violation of
I
On February 8, 1974, the defendants, along with two to three hundred other persons, attended a funeral in Gary, Indiana. Several agents of the Drug Enforcement Administration were conducting undercover surveillance at the funeral home for the purpose of observing and identifying suspected narcotics dealers. All of the agents involved in the surveillance wore ordinary “street” clothes and drove unmarked cars.
Agent David Munson, who was equipped with a video tape camera, stationed himself outside the funeral home alongside photographers from a Gary newspaper and began filming the mourners as they left the funeral home. Most of the several hundred mourners at the funeral home (including the defendants) were black and a group of the black mourners demanded that Munson, who is white, cease taking pictures and leave the area. One member of the crowd, William Hanyard, began shoving and hitting Munson when he continued to film the mourners. The defendants Hillsman and Bush were not identified as being in any way involved in the verbal or physical exchange with Munson.
Immediately after the shot was fired, Rhodes announced that he was a federal agent and told Munson, “Let‘s get out of here.” Although Munson heard the latter statement, he did not hear Rhodes announce that he was a federal officer. Rhodes and Munson then moved to their cars. Munson jumped into a car with several other agents and Rhodes stopped to talk briefly with one of these agents. Rhodes then began walking toward his own car. At no time did Rhodes or Munson approach the body of Griffin.
As Rhodes was moving toward his car, a woman in the crowd pointed at him and said, “He is the one; there he goes.” A group of the mourners then began running after Rhodes. As Rhodes drove away, shots were fired at his car. One bullet struck the car but Rhodes himself was not injured.
Hillsman and Bush were identified as being members of the group that chased Rhodes and were observed firing weapons at Rhodes’ car.
II
Hillsman and Bush contend that the indictment in this case was fatally defective in that the federal officer assaulted was not a member of an agency designated in the pertinent statutes.
The defendants were charged in the indictment with assaulting Agent Rhodes, an officer of the Drug Enforcement Administration, in violation of
The seeming discrepancy in
In United States v. Irick, 497 F.2d 1369 (5th Cir. 1974), the Fifth Circuit was faced with the identical issue. The Fifth Circuit held that, under
“A statute enacted, and a regulation or other action made, prescribed, issued, granted, or performed in respect of or by an agency or function affected by a reorganization under this chapter, before the effective date of the reorganization, has, except to the extent rescinded, modified, superseded, or made inapplicable by or under authority of law or by the abolition of a function, the same effect as if the reorganization had not been made.” (Emphasis added.)
As the Fifth Circuit noted, the purpose of
In the present case, then, once the reorganization took place, the agents of the Drug Enforcement Administration were “protected persons” under
The defendants contend, however, that, since it is a penal statute,
“The strict construction concept does not ... require that other pertinent statutes, in this case section 907(a), be disregarded. Furthermore, the doctrine is grounded in the principle that persons accused of a crime must be afforded fair warning of the prohibited conduct. ... It cannot be validly argued that defendants were not given adequate notice of the prohibited conduct, that is, the assault of a federal officer. Section 907(a) in no way changes the nature of this conduct.” 497 F.2d at 1373.
The defendants next argue that the district court erred in failing to instruct the jury that if the defendants reasonably believed Rhodes to be a fleeing felon, the jury should find the defendants not guilty.
The undisputed evidence indicated that neither Bush nor Hillsman was involved in the Munson-Hanyard skirmish. Both defendants testified that although they saw the altercation, they, like Agent Munson, did not hear Rhodes announce that he was a federal officer.4 According to their testimony, the defendants pursued Rhodes because they believed him to be a felon fleeing from the scene of the crime and they wanted to catch and hold him until the police arrived. If Hillsman and Bush did fire at Rhodes’ car, a point which the defense did not concede, they did so, according to one theory of the defense, only because of their mistaken belief that Rhodes was a fleeing felon.
In its charge to the jury, the district court instructed the jury that, in order to find the defendants guilty, the jury must “first find that they committed an intentional act willfully done without legal excuse.” The lower court also instructed, however, that:
“In order for the Government to establish the offense charged in the indictment beyond a reasonable doubt, it is not necessary that the Government prove as part of its case that the defendants or either of them had actual knowledge that the victim was a Federal Drug Enforcement Agency Agent who was engaged in the performance of his official duties.”
With respect to the defendants’ claim that they were only seeking to stop a person they believed to be a fleeing felon, the district court gave a lengthy instruction concerning the right of a private citizen to make an arrest. The court however, refused to give a defense instruction which provided:
“There has been evidence that the Defendants, James Hillsman and Clinton Bush, gave chase to Kenneth Rhodes, as he was leaving the scene of the funeral of Van Lott in the vicinity of 23rd Avenue and Washington Street in Gary, Indiana, and that at the time the Defendants gave chase they did not have knowledge that Kenneth Rhodes was a Federal Agent.
“If you find from the evidence that the Defendants, James Hillsman and Clinton Bush, acted out of reasonable belief that Kenneth Rhodes was not a Federal Agent but instead was a private citizen who the Defendants, James Hillsman and Clinton Bush, had reasonable cause to believe had committed a felony and was fleeing the
scene in order to avoid apprehension, and that the Defendants, James Hillsman and Clinton Bush, chased Kenneth Rhodes in order to stop his flight and detain him then you must find the Defendants, James Hillsman and Clinton Bush not guilty.”
A defendant in a criminal case is, of course, entitled to have the jury instructed on any theory of the defense which has some foundation in the evidence, “even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility.” United States v. Lehman, 468 F.2d 93, 108 (7th Cir. 1972), cert. denied, 409 U.S. 967, 93 S.Ct. 273, 34 L.Ed.2d 232. See also United States v. Grimes, 413 F.2d 1376 (7th Cir. 1969). The testimony of Bush and Hillsman clearly raised a factual question as to whether the defendants reasonably believed Rhodes to be a fleeing felon. The issue becomes, therefore, whether, given the particular facts of this case, a reasonable mistake of fact as to Rhodes’ status would be a defense to a prosecution under
The Supreme Court has recently held, in a decision rendered after the trial in the present case, that a person may be criminally liable under
The assault in Feola was an intentional, unprovoked assault upon a person who, unbeknownst to the defendant, was a federal agent working undercover. The defendant in Feola did not claim that the assault itself was justified in the sense, for example, that it was done in self-defense or to protect another person from harm. Under these circum-
This interpretation of
For in the case of an intentional, unjustified assault, such as was present in Feola, the defendant may be surprised to find that his victim is a federal officer, but the defendant
“nonetheless knows from the very outset that his planned course of conduct is wrongful. The situation is not one where legitimate conduct becomes unlawful solely because of the identity of the individual or agency affected. In a case of this kind the offender takes his victim as he finds him. The concept of criminal intent does not extend so far as to require that the actor understand not only the nature of his act but also its consequence for the choice of a judicial forum.” At 685, 95 S.Ct. at 1264. (Emphasis added).
The Court in Feola, however, carefully distinguished the unjustified-assault situation from the situation where a defendant was unaware that the other person was a federal agent and the agent‘s actions were such that the defendant would have been justified in using force against the agent had the agent, in fact, been a private citizen. In the latter situation the defendant‘s lack of knowledge of the agent‘s status negates the mens rea necessary under
“We are not to be understood as implying that the defendant‘s state of knowledge is never a relevant consideration under § 111. The statute does require a criminal intent, and there may well be circumstances in which ignorance of the official status of the person assaulted or resisted negates the very existence of mens rea. For example, where an officer fails to identify himself or his purpose, his conduct in certain circumstances might reasonably be interpreted as the unlawful use of force directed either at the defendant or his property. In a situation of that kind, one might be justified in exerting an element of resistance, and an honest mistake of fact would not be consistent with criminal intent.” At 686, 95 S.Ct. at 1264.
See also United States v. Perkins, 488 F.2d 652 (1st Cir. 1973), cert. denied, 417 U.S. 913, 94 S.Ct. 2612, 41 L.Ed.2d 217 (1974); United States v. Young, 464 F.2d 160 (5th Cir. 1972); United States v. Goodwin, 440 F.2d 1152 (3d Cir. 1971).
In short, then, where a defendant charged with violating
We turn, therefore, to the question of whether, assuming arguendo, that Hillsman and Bush were attempting to make a citizen‘s arrest, the actions of the defendants would have been justified had Rhodes been, as they allegedly believed, a private citizen. Since the incident would have been governed by Indiana law if Rhodes had been a private citizen, we look to the law of that state in making this determination.
Indiana follows the general common law rule that “a private citizen has the right to arrest one who has com-
The private citizen‘s right to make an arrest, however, is limited by the fact that he, unlike a police officer, acts at his own peril. A police officer has the right to arrest without a warrant where he reasonably believes that a felony has been committed and that the person arrested is guilty, even if, in fact, no felony has occurred. A private citizen, on the other hand, is privileged to make an arrest only when he has reasonable grounds for believing in the guilt of the person arrested and a felony has in fact been committed. Smith, supra; Doering, supra; Teagarden v. Graham, 31 Ind. 422 (1869). See also Restatement (Second) of Torts § 131 (1965).5
In the present case, the proffered defense instruction in question contained an incomplete statement of the law regarding a citizen‘s arrest and, therefore, did not accurately state a Feola mistaken-belief defense. The instruction tendered by the defendants stated that Hillsman and Bush should be found not guilty if they reasonably believed Rhodes to be a private citizen and reasonably believed that he had committed a felony. Under Feola, however, a mistake regarding the status of the victim is alone not a sufficient defense to a
The instructions actually given to the jury, on the other hand, while perhaps not a model of exhaustiveness of the subject, did adequately inform the jury of the requirements of a valid defense. The district court, not having the Feola decision to guide it, admittedly did not mention the possibility that the defendants had made a mistake of fact as to Rhodes’ status. In light of the other instructions given and the peculiar facts of this case, however, we are of the opinion that notwithstanding this failure the jury was adequately instructed as to the particular defense.
As explained, in order to acquit Hillsman and Bush on the basis of a Feola mistaken-belief defense, the jury would have had to find both a mistake of fact as to Rhodes’ status and an otherwise valid citizen‘s arrest. The trial court did instruct the jury in detail with regard to the right of a private citizen to make an arrest without a warrant. This instruction accurately stated that although deadly force could be used to effect such an arrest in an appropriate case, no citizen‘s arrest would be valid unless a felony had in fact been committed.6 And
In addition, the district court instructed the jury with respect to the question of whether a felony had occurred when Rhodes shot Hanyard and Griffin. The jury was expressly told that if they found that a felony had occurred, then they could apply the law of citizen‘s arrest. The court admittedly instructed the jury with respect to only one type of felony, voluntary manslaughter.7 This, however, was the only felony for which the defense requested an instruction and the defense does not contend on appeal that instructions on other felonies were necessary. Although it may be argued that a jury could have found that Rhodes committed a felony other than voluntary manslaughter, we cannot say that the district court‘s failure to instruct on other felonies, in the absence of any request by the defendants, was plain error requiring reversal.
The instruction on voluntary manslaughter was phrased in terms of whether Rhodes had committed that felony. Under a strict Feola analysis, the proper issue was whether a private citizen, who acted as Rhodes did, would be liable for voluntary manslaughter. In this case, however, this is a distinction without a difference. A law enforcement officer is on an equal footing as the private citizen with respect to voluntary manslaughter; the officer has no right, due to his office, to commit such a felony when a third person is attacked. Thus, given the rather unusual circumstances of this case, the possibility that the defendants were mistaken as to Rhodes’ status was less central to their defense than the issue of whether they had the right to make a citizen‘s arrest, a matter which, in turn, depended upon whether a felony had, in fact, been committed. For if Rhodes had in fact committed voluntary manslaughter, the defendants would presumably have had the right to make a citizen‘s arrest, even if they had known Rhodes to be a federal agent.
In sum, then, the defendants could not rely, in presenting a Feola mistaken-belief defense, solely on their alleged mistake of fact as to Rhodes’ status. An equally if not more important part of such a defense was the issue of whether the defendants had the right to make a citizen‘s arrest, a matter on which the district court adequately instructed the jury. Since the jury found against the defendants on the citizen‘s arrest issue, the failure to mention the possibility of a mistake of fact as to Rhodes’ status does not vitiate the adequacy of the instructions given nor require reversal because of the refusal to give the tendered instruction.
IV
Finally, the defendants contend that the district court erred in admitting certain impeachment testimony presented by the Government.
Cora Todd, a defense witness, testified that she was standing near Rhodes and Munson when Rhodes fired his gun and that she did not hear either Rhodes or Munson announce that he was a federal officer. The Government called as a rebuttal witness Thomas Feliciano, a Gary police officer. Officer Feliciano testified that after the shooting, he took a joint statement from three witnesses, Cecelia Willis, Cora Todd, and Cornelia Rondo, with Ms. Willis acting as the spokeswoman for the three. One question which was asked of the three women in the course of taking the statement, according to Feliciano, was whether the individual who fired the gun at Hanyard identified himself. Feliciano testified that Ms. Willis answered that the man “hollered something about being a police officer.”
The defendants’ primary contention appears to be that this was improper impeachment testimony because it con-
Where a prior inconsistent statement is used to impeach a witness, the prior utterance may be in the form of a joint statement which the witness signed. 3A Wigmore, Evidence § 1040 (Chadbourn rev. 1970). As Professor Wigmore points out, “If the statements did not accurately represent his own beliefs, [the witness] may absolve himself by explanation.” Id.
In the present case, the district court correctly found that the statement given to Officer Feliciano was a joint statement of all three women. Officer Feliciano‘s testimony could, therefore, properly be used to impeach Ms. Todd.
Affirmed.
TONE, Circuit Judge (concurring).
While I concur in the court‘s opinion, I feel constrained to say a few words about the question decided by Part III of that opinion.
The majority in United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975), held that “the ‘federal officer’ requirement” in
I am uncomfortable in holding a defendant criminally accountable for conduct which, we hypothesize for present purposes, he thought was not only lawful but socially desirable, and I am made more so because the penalties provided by the statute are so harsh as to suggest that Congress did not contemplate their imposition on persons who did not believe they were committing a wrong. The defendants here were each sentenced to nine years imprisonment. The severity of the sentences indicates that the judge did not believe they were merely trying to apprehend a felon, but the jury might have found otherwise. This case demonstrates the harsh results that can be produced by transplanting the state laws of criminal assault and citizen‘s arrest into a federal criminal statute which does not distinguish between unknowing assaults and knowing assaults and punishes one as harshly as the other.* See Mr. Justice Stewart‘s dissent in Feola, 95 S.Ct. at 1276. I concur in Part III of the court‘s opinion in the case at bar only because I believe Feola requires that result. If I were free to do so, I would hold otherwise.
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