United States v. Juan Ramon Fernandez

WRIGHT, Before HUFSTEDLER Judges ENRIGHT,* District Circuit Judge.

Judge: ENRIGHT, District August 1971, Ra defendants Juan Fernandez, Ortiz and Ro

mon Alberto arraigned and dolfo Pena Sanchez were original pleaded guilty to an three superseding count indictment. A indict September 1, 1971, ment was filed charging defendants count one with 371, conspiracy, violation 18 U.S.C. § in count with violation of 18 two U.S. mail, robbery money, C. § property other of the United in count three with a violation of 18 U. upon a federal offi S.C. § guilty pleaded not Defendants cer. superseding all counts of the indictment. lengthy On November after jury record, trial with a voluminous all guilty defendants were found as to all Defendant Fernandez sen- counts. years one, tenced five on count twen- ty-five years two, on count and ten years three, on count all sentences to concurrently. run Defendant Ortiz was years sentenced to five on count one and years ten on count three to run concur- rently. twenty- Ortiz sentenced years two, five on count execution of suspended, placed sentence and he was probation years on for five run con- imprisonment. secutive to the term of Defendant Sanchez was sentenced to five years one, twenty-five years count on two, years count three, and ten on count consecutively. all terms to run Rodriguez (argued), Los Antonio H. FACTS Angeles, Cal., Roger Duncan T. (argued), Hollywood, Cal., appel- government’s principal The witness

lants. victim, Canales, Special was the Robert Agent, Danger- Bureau of Narcotics and Atty. Boyd, Earl E. Asst. U. S. Drugs (BNDD). ous (argued), Keller, Atty., William D. U. S. Irving Atty., Prager, Asst. Los February U. S. Canales testified that Angeles, Cal., appellee. Angeles an inmate in the Los * Enright, Judge The B. Honorable William District for the Southern District California, sitting by designation. County telephoned trial, (b) indi- Jail BNDD and conduct the le- gal cated he wanted to talk to a BNDD agent. elements of the offenses. eventually Canales met with the A. Conduct the Trial given July inmate on and was Challenge Jury telephone Selection. That number of Sanchez. day, defendants have raised several same Canales called and in- Sanchez objections process jury Canales, selection he, dicated that had been told in the Central District California. that he could contact Sanchez if he government, however, narcotics, contends that purchase particular- wanted to comply did not ly defendants the man- with heroin. Sanchez indicated to Canales datory provisions of 28 preferred that he telephone not to converse on the (West challenging compli- Supp.1974), suggested per- but instead a procedures. jury ance meeting following selection day. We sonal on the government’s position. cannot fault the day agreed The next at the time and location, Canales, possession gov- One additional comment as operating funds, ernment in an under- jury challenge concerns would be benefi capacity, cover and under surveillance 1863(b)(2) cial. allows vot agents, other BNDD met with Sanchez. registration used, er to lists be unless Negotiations concerning pur- ensued the supplemental some other source is neces chase of two ounces of heroin. sary policies to achieve the of 28 U.S.C. they Sanchez then told Canales that The 1862. Central District §§ go should proceeded to his connection. The two General Order No. states a conclusion upon motorcy- to ride Canales’ necessary. that no other source is The particular parking Leaving clе ato lot. argue important defendants that the is motorcycle, Canales on the Sanchez stat- study sue is exists no or evi 'ed that he would be back in a few mo- finding support dence to the of General with ments the narcotics. Rather, Order No. 55. defendants as experience” political While Canales sert remained that “common mo- the torcycle, departed assumption registra Sanchez belies an area, the that voter represent momentarily to return tion lists with a cross-section of the Fernandez left, populace. and Ortiz. trio The then but min- But the defendants have the later, Ortiz, showing, prima facie, utes burden of Fernandez and after discrim maneuverings, inatory practices. up certain Georgia, ran to Whitus v. Canales weapons. They drawn 550-551, demanded 646- give (1967); money. Canales them all L.Ed.2d 599 Butera, (1st Ortiz motorcy- ordered off States v. Canales the cle, political experi but Fernandez “Common countermanded the cry judicial notice, order. ence” is a far from comparative to mention statistical At that time Canales made a move- studies utilized in Butera. Whitus v. get motorcycle. ment to off the Wheth- short, by relying upon polit In “common agent making er the cov- move for experience,” ical defendants would have weapon er disputed. or for his Suf- failed to bear their burden. say, fice it to that moment he was shot Fernandez and The Ortiz. the Search Venire. Prior pa- permanent wound so received caused jury to the voir dire and selection of the ralysis Agent Canales. panel, ju- prospective at least nine (three jury rors of whom became mem-

ISSUES alternate) bers and one an were presented weapons by The fifteen is- searched for the United defendants appeal. responsible sues on Those issues sufficient- States Marshals for court- ly security. prospec- room meritorious as to deserve discussion search may categories: (a) jurors shortly divided into two tive be was curtailed after begun thereafter, sides, impanelment

had the go marshals should for upon presentation jurors’ relied cards. Further, ward. the court intended purge prejudice dire, search was conducted in full view voir admo fifty member venire. It nition, any. challenge, if Defense presumed many knew veniremen neither offered additional voir dire customary. procedure that such was not questions subsequently nor utilized potential period For five hours the challenges ques for cause. The court jurors implica- to discuss the were free panel thoroughly possi tioned the as to tions of the search. resulting prejudice ble bias from recess, judge Prior ‍​​​‌​​‌‌‌​‌‌‌​‌​​​​‌​​​‌‌‌‌​​‌‌​​​‌‌‌​​‌‌​‌‌​​‌‌‍a noon the trial Finally, point search.1 the defense at one indicated felt a could that he new venire prejudice, any, conceded that forty-eight be made available within might equally govern directed recess, however, hours. After ment as Given the defendants.2 court, desiring jury impanel particular case, circumstances of this we afternoon, denied defense motion chal cannot conclude course chosen lenging the venire. The court stated judge imprudent the trial in nor balancing of all con interests sufficient. possible prejudice cerned and the to both your VENIREMAN GREENLEAF: I had THE COURT: connection with coming anything same as Mr. Mitchell. today, to the courtroom did panel, you you THE And in get can COURT: back the occur which influenced so cannot impartial we parties, reserve thosе until we in the fair them and towards all both box, gentlemen? . United States and the V defendants Please, your particular security MR. BROWN: I be- I have Honor. the reference to lieve up there in were others the back measures row that have been set outside this jury. the courtroom and the information that I have procedure changed, THE COURT: Did I miss that there? before the was five Were somebody? you may or six of have been searched. Anyone jury you searched, that back row of the Do those of who were or do you response had raised their hand that those of who observed such be- searches question? any way you lieve that that influenced so (Negative response.) you impartial that cannot be fair and to- sides, sorry, your MR. : I both BROWN am wards either the defendants or Honor. respect THE COURT: Government? With to those you you my your did, ques- three of that Raise hands. heard respect tions with to whether or that VENIREMAN I don’t that STURLA: feel you against would influence either for or your you asked, I can be Is what fair. that against Government ants, the defend- Honor ? you did not? right. THE COURT: That is (Affirmative response.) name, Your sir? Reporter’s Transcript 232-34. VENIREMAN Sturla. STURLA: John general Any 2. THE COURT: THE that Thаt covers the COURT: others reason questions ask, anything today although out- which I either intend to I that occurred happy way? questions will be ask side inside in addi- the courtroom feel that presented by (Negative response.) tion to those I did either showing respect May Government or the defendants with THE I have a COURT: anyone to the search made. hands name of and identification If there are none— who was searched? your Yes, Honor, I MR. do them one a time. BROWN: will one. have We Mrs. McMillin. What my I had been that nature of the convinced mind search? own jurors prejudice My the search hand- would if McMILLIN: VENIREWOMAN bag going my against all back. defendants. I and instrument down have reconsid- your Mr. ered view THE COURT: And Mitchell. Honor’s statement jurors, prejudiced, might equally VENIREMAN It was one if have MITCHELL: beeper things. little blamed the Government. those electronic-type Reporter’s Transcript I An THE see. 234-35. COURT: device. Anyone else? bar- in the Chicano and addiction Misconduct. traffic Prosecutorial prosecut- rios. that the contends The defense ing acts attorney numerous committed further testified The defendants de- When prejudicial misconduct. goal, accomplish they Lа their and accumulated engaged contentions fendants’ Carnalismo, in a had de Casa twenty-four counselling within concentrated and campaign included which de- comprising one-fifth pages, treatment, speaking drug addicts to seek without they read student, brief, cannot youths fense and to to individual re- improprieties sentiment prison groups, some at- youth, as well and commit- been have quiring They reversal legislation. tempting influence of a in the context read they report ted. But when would not also testified volumes, consisting nineteen they enforcement, record to law dealers alle- pages, totaling informers, three thousand they so, be labeled did would muted, gations become jeopardized. of misconduct safety their would be and overwhelming evi- light of the explained that, Finally, after defendants guilt, may be concluded they deliberation, dence of undertook their much essentially judge conducted vigilante activity, police the trial because the just proceeding and dealing fair and adequately with the were did oc- prosecution’s misconduct—which drug problem. of suf- instances —was cur in several urge The defendants that the require reversal.3 toas moment ficient excluding trial court erred as irrele Eyman, Favors v. See expert percipient vant both ny testimo Taylor 1972); (9th Cir. testimony to corroborate their re U.S.App.D.C. States, 134 anti-drug garding their activities. (1969). seventeen While witnesses were excluded judge, nevertheless, Motive. trial he did Evidence Exclusion testimony allow the of five witnesses theory of the defense case Agent past did the who corroborate defendants’ met Canales had defendants the anti-drug activity. The trial court heroin that he was the belief admitting vested with discretion in him to intended to and had warn dealer denying evidence, g., motive drugs e. Zamloch dealing stop in the barrios. within they 193 evidence, though had testified that defendants The previously 1952), action, and rele in- both as taken such may organi- vant, be excluded at the discretion of an and as members dividuals zation, probative the if of court Carnalismo, value is sub main the La Casa de outweighed stantially drug considerations goal to eradicate of which was On another occasion defendant Sanchez did trial court noted that the 3. It should be questioned g., was as to whеther he had been cautionary give B. admonitions. forceful robbery. convicted of armed The inference . . . THE COURT: question, you, in such I remind was will have in their time counsel time to From quickly response denying his inadvertently corrected questions to made reference robbery. way conviction for armed you, relat- in no and matters not before any confusion, however, questions To avoid the Court such ed to this case. Such —one you example, advises that defendant reference, Sanchez was question made robbery robbery, armed police convicted of but of inferred Another of a officer. death only on that occasion. to borrowed vehicle defendants that any jury jail Is be- member of the who man in for a used obtain bail totally and lieves he or she cannot follow murder. completely in- ignore ref- the Court’s admonitions and all such are admonished to You just regarding not- structions the matters evi- are counsel Questions erences. any ed? any such nature. And kind of dence of so, please your any If hand. raise de- not be related references must (Negative response.) any this issue in this case or fеndant no THE Let the record COURT: show case. completely totally raised. hands have been too, They, should be Reporter’s Transcript by you your 2773-74. ignored deliberations. any time, impeached delay, need- tion not have criti- would undue waste prosecution. cal for the presentation of evidence. witness cumulative less Justice, g., on Criminal E. Subcommittee agree. Any bias shown We Judiciary, on the ten- House Committee impact little, any, would have Cong., 93d 1st tative draft of H.R. appellants, determination (13 Crim.L.Rptr. sess., Rule 403 they testified, indeed intend to con did July 18, 1973); Proposed Rule Federal front Canales. And effort to im F.R.D. of Evidence peach necessary witnesses as to the facts Wigmore (1973); on Evidence §§ support theory ir self-defense 1907-08; Ev- Rule Rules of Uniform circumstances, these, relevant such as judge idence. another trial While theory is, best, where such tenuous. permitting ad- have been more liberal in testimony, conclude ditional we cannot Legal Elements B. Offenses judge from the record that the trial legal The defendants raise two basic abused his discretion. arguments. First, they assert Inspection. A In Camera identity of the federal рroduction defense motion for of excul- prereq- victim and funds is an essential patory material, including government uisite for conviction under each count. intelligence made, files, was based argue Second, they that 18 U.S.C. § (Frank) the affidavit a Eustacio robbery matter, money, of mail 2114— Martinez, government paid a former property other United States— former. The affidavit essence stated intended en- superiors that he had informed his compass their instant conduct. Each La de Casa Carnalismo was not involved shall be examined in turn. illegal activities rather but Knowledge Federal Iden anti-drug self-help program; tity. they Defendants insist ac government intention of the was to close tually Agent believed that Canales was a gov- Carnalismo; La Casa de drug dealer, hence, each defendant possessed photos ernment surveillance argues ignorant that he was that Ca appellants among others. The theo- government reality agent. nales was in ry of the defense was that intelli- government’s The thrust response gence information would be relevant argument ig is that defendants’ entrapment issues and bias and irrelevant, specific norance is knowl part prosecution motive on the wit- edge agent that the victim is a federal nesses. The motion denied without was not an essential element of forcible as inspection.4 an in camera sault under 18 U.S.C. 111. United Kartman, (9th States v. 893, appeal 417 The defense on F.2d 894 also asserts 1969); Cir. exculpatory States, McEwen the information would (9th 390 1968). F.2d testimony 47 Cir. corroborate the of a defense Agent prior witness that Canales had Both McEwen rely and Kartman appellants La and Casa large part upon United States v. Lombar Additionally, appellants de Carnalismo. dozzi, (2d 1964), 335 F.2d 414 cert. argue that such information would have denied, 914, 261, 379 U.S. 85 13 L. S.Ct. impeach testimony served to the (1964). Ed.2d Thus, 185 McEwen, government agents deny- to the effect of 111, reference to Section this court ing prior knowledge. adopted holding of the Second Circuit: government appeal counter- by judicial leg- “The courts should not argues change that the information would be to- adding, islation the statute tally guilt immaterial effect, the the de- the words 'with fendants and revelation of the informa- that such is a federal officer’ affidavit, This,

4. too, With similar defensе moved for a new trial. denied. was

737 originally government the conceded Lombardozzi, su- provisions]”, its [to “ protect ‘to in Ladner was the individu- 416, pra, p. .... officers, as al “wards” of the federal similarly in Kart- And at 50. F.2d 390 ” personal from harm.’ 358 government, man, court held that 174, 79 S.Ct. at U.S. at as- interpretation of the forcible This Indeed, stat the raison d’etre for the re- as prohibition 111 in section sault government protection of the ute the rea, not also quiring mens question officer. The essential may is how of- the victim’s specific par protect serve the statute the legis- comports the status, ficial agent particular ticular circum simply to purpose, which was lative before stances here us. This is not the enu- provide forum when a federal States, McEwen v. case like United offenses were committed merated against pres F.2d 47 where engaged federal officers of the officers was ence announced performance federal duties. electrically directed to the defendant Lombardoz- v. . United States operated megaphone, also, and where zi, F.2d .... “ defendant admitted that T had a at 895. sneaking policemen. hunch that it I was don’t what know individuals —I had no adopted us The above conclusions ” idea what branch.’ Nei Id. at 49.5 on the based from Lombardozzi were ther is instant case similar to United legislative [suggesting] “meager history Kartman, States merely in section 111 alleged 1969); assault oc provide sought forum a federal upon curred an individual os who was .” Lombar . States tensibly engaged subduing and arrest dozzi, ing during protest a demonstrator retrospect, we cannot conclude an Armed Forces Induction Center. legislation the mere intent of provide only to a federal forum. While case, In the instant were the Department true that the Justice it is agent’s circumstances such that the fed- sought legislation identity that “[t]he so necessarily eral was not ob- be com agent Federal Government should not vious, but rather the time rely pelled the courts of the question positively in ately and deliber- respectable however and well dis attempting disguise very posed, protection for the identity. of its investa The more successful in dis- ” gative personnel,’ guising identity, and law-enforcement likely more Ladner prospect that the fully defendants would n. agent’s n. accept 174-175 S.Ct. feigned L. role, and (1958), nevertheless, Ed.2d 199 the un thereby subject themselves to increased derlying purpose legislation penalties specific against for a crime Although distinguished McEmen Balint, S. factually, holding distinguishable: (1922) ; is less Ct. L.Ed. 604 requiring knowledge The rationale Wallace, for not 368 F.2d 537 or scienter as an process element of offense of the No of violation due is involved. assaulting Balint, a supra, pp. federal officer of the course 251-252, 258 U.S. 42 S.Ct. performing may succinctly 304, Shevlin-Carpenter his citing duties be stat- Co. of v. State (1) judicial ed Minnesota, : “The courts should not 30 54 L. S.Ct. legislation change by' adding, (1910). the statute Ed. 930 indictment is sufficient effect, although ‍​​​‌​​‌‌‌​‌‌‌​‌​​​​‌​​​‌‌‌‌​​‌‌​​​‌‌‌​​‌‌​‌‌​​‌‌‍charging the appellant words ‘with such not knowl with person provi- edge is a federal officer’ [to at the or intent time she committed the sions]”, Lombardozzi, supra, p. offense, phrased being language and it in the of the common law rule that a scienter was the itself. United States v. Behr necessary man, element indictment 42 S.Ct. 66 L.Ed. proof every (1922). crime has been modified respect statutes, purpose to the of which 390 F.2d at 50. requirement. be would obstructed such a floodgates Opening designated un- ex- countless

specific, victim. There strong possi- known difficulties could emasculate in such a situation ists agent’s protection the bility true intended. if in fact step. identity activity known, We hestitate to such a no take were such or even been con- would have occurred legislative There does exist within templated. potential statutory for branch the change. example, 18 Hypothetically, it For U.S.C. § is unreasonable bystander injury as it could be amended with to a now exists assume requiring public happens of an element a disturbance who to be inclusion offense, might dispro- A a lesser included federal officer lead scienter. requiring portionate penalties persons scienter, could be enacted. who also had suspect anticipate a no reason or tandem would do much to alle- such Such and, misgivings; pay inappro- result, viate our but is status as a it the Con- priately price igno- gress act, judiciary. which must not the harsher for their rance. possibility must note We also requirements different scienter sub for If a state law enforcement officer had conspiratorial stantive and crimes. upon come purported scene precise issue of whether scienter is nec and, relying upon appearances, sale had essary conspiracy conviction for to vi very injury, conceivably inflicted this we recently olate 18 U.S.C. 111 has been § legal could deal with similar issues. addressed the Second Circuit in Unit When, here, agent ostensibly Alsondo, (2d ed States v. 486 F.2d 1339 gives up badge goes undercover, 1973), granted nom., cert. Unit sub gives a situation is created which rise to Feola,-U.S.-, ed misgivings involving about crimes (1974). Relying 40 L.Ed.2d 285 status of the victim when such knowl- upon by Judge proffered the rationale edge is not an element of the crime. We Hand, Learned are, however, also concerned that rec- ognizing instance, such a may, guilty defense to defeat federal While one jurisdiction, greater running light a past evil a traffic presented. ignorant, whose existence one is one guilty conspiring cannot be to run If element, were made past light, agree such a for one cannot conviction, course, would become de- light past supposes run unless one pendent upon the state of mind of the light past, that there is a to run defendant, prosecution and successful Crimmins, United States v. necessаrily would specula- become more 1941), Circuit Hence, tive. we prosecu- would envision required proof held that scienter is having tors to make subtle tactical deci- conspiracy. sions well in advance of evidentiary resulting hearing, misgivings Not do bifurcated state we have about prosecutions. and federal tiple prosecutions involving turn, substantive mul- offenses the status myriad would raise a victim where an el- scienter potential jeopardy ement, especially double but we are issues.6 concerned (West State, acquittal California Penal Code conviction or thereof provides: prosecution “Whenever on the trial of an former bar to the ac- appears upon cused it dictment therefor this State.” criminal prosecution People State, Belcher, the laws of Sea another Cal.3d Government, Cal.Rptr. country, (1974) ; People founded P.2d respect Candelaria, Cal.App.2d act or omission in to which he is on 294 P.2d trial, acquitted (2d Dist.1956) ; Note, convicted, he has been Law: Criminal Acquittal ais sufficient defense.” or in Conviction a Federal Court (West 1970) California Penal a Bar § Code as to State Prosecution: California 793 charged 656, pub- is similar: 197 “When act Penal Code 45 Section Calif.L.Rev. jurisdiction (1957). lic offense is within the of an- country, other State or of as well as

739 possession e., in of marked the conspiratorial funds suffer offenses when Agent of of the Bureau Narcot- Canales the weakness. from same Dangerous Drugs. response, ics and note that The Alsondo court did prece- government argues first that the sub has been rationale the Crimmins prop- position the dent bolsters its erty fol jected has criticism. Our circuit to post- need not related be criticism. United States lowed such language second, service, that the al (9th 879, Roselli, Cir. 891-892 432 ambiguous patently of the statute is denied, 924, 91 1970), 401 U.S. S. cert. no need to exam- and hence there exists (1971). 883, L.Ed.2d 828 Consid Ct. legislative ine intent. precedent, ering we of our own the state hold that scienter regards argument, continue to would the the first As conspiracy necessary to element government not a our attention to directs agent perform a federal O’Neil, United States v. duties and to steal of his official ance (9th 1970); v. Sher Cir. governmental 1970), funds. (4th man, 421 F.2d 198 cert. nom., denied sub Sherman argue that an es- The defendants also States, element of 18 2114 is sential U.S.C. § (1970); Peek v. ‍​​​‌​​‌‌‌​‌‌‌​‌​​​​‌​​​‌‌‌‌​​‌‌​​​‌‌‌​​‌‌​‌‌​​‌‌‍L.Ed.2d 78 States, United the of the federal nature of 1963); (9th F.2d 934 property would be We involved. States, Lockhart v. 293 F.2d 314 United clined to hold that the defendants 1961); Banks United analogous error for the ones reasons to States, F.2d 409 immediately re- But since we above. support These cases render little verse the conviction of the defendants government. cases, Lock- The latter two Section we do not reach postal Banks, hart did involve mon issue of identi- of cases, ey. And in the former three ty property of the involved. not raise nor did defendants did 2. Construction 18 U.S.C. § of respective courts decide the is contend Defendants that 18 U.S. presently must there be sue before us: C. 2114 makes criminal assaults § property taken and nexus between having property with intent to rob suf postal service ? postal ficient connection to the service. reading Obviously, ease, Our of the statute leads us in the instant there is wording employed in system conclude that no connection the mail between property involved, predecessor amendment of its and the here i. any person provides having § : Whoever shall assault any custody any charge, person, having control or of Whoever assaults law- lawful rob, charge, control, custody any matter, mail or ful or mail with intent steal purloin any part any money property mail or there- matter or such matter or other any person rob, of, States, mail or or shall rob of such with intent any offense, purloin part thereof, shall, steal, matter, money, first or such mail or years; imprisoned property States, not more than ten other robs be or effecting attempting any person matter, any and if in or to effect such mail or of person robbery, money, property such shall wound he or other the United put having custody mail, shall, impris- States, offense, or his life for the first be dangerous jeopardy years; the use of oned ten and if in ef- not more than weapon, subsequent offense, robbery fecting attempting for a shall or or effect such imprisoned twenty-five years. having custody he wounds August property mail, money, The Act Oh. such or other comparison, puts jeopardy : read Stat. or his life person having any dangerous weapon, Whoever shall assault for a the usе of a custody control, charge, offense, subsequent imprisoned lawful shall any money twenty-five years. or other mail matter or of property intent of the United matter, purloin rob, steal, 4, 1909, mail such 8. The Act of March Ch. money, property 1126, provided: the United or other 35 Stat. ambiguous upon count are sufficiently two reversed and dis- to raise is legislative history. missed. question Once legislative history more consulted a is

precise In 1935 is obtained. focus HUFSTEDLER, Judge (con- Circuit terminology “money” proper- and “other curring specially): ty” had was added to the which expressed circuit, The law of this previously references to contained 1969) United States v. Kartman Cir. congressional dis- “mail matter.” McEwen United illuminating legislative as cussion is 1968) States is history possibly could be: implied that a or defendant’s actual only purpose pending of the bill knowledge that his victim was a federal protection of the to extend the is enforcement officer not law is an ele- present property law to of the ment offense defined 18 U.S.C. postal custody in the States of- solely compul- I concur under the ficials, as it extends the same now circuit, sion оf the law but I ex- protection that to mail matter my press believing reasons for that custody postal Aside officials. these Ninth Circuit cases and cases that, change in it makes no from they rely wrong.1 on which are just property It of the law. includes explicitly not Section does state United States in addition to mail mat- punish intended to con protected; say ter me which and let ignorant persons duct who were many postal there are custodians fact, their victim’s official This status. great stations who have amount however, begins rather ends in than our money custody mail; in their but little Congress’ quiry. specify failure to instance, in those substations knowledge of the victim’s status was an money If where orders are sold. compel element of the offense not does seeking employees bandit attacks these knowledge the conclusion that re not money, way prose- there is no quired. Although Congress easily could law, present cute the bandit under the knowledge have said that anwas element merely postal but if he is after a card (United (2d States Lombardozzi prosecuted. or a letter he can be 1964) 414), easily 335 F.2d it could as Cong.Rеc. (1935) (emphasis expressly have deleted as an added). (cf., element Morissette v. United States The convictions as to Count II were (1952) U.S. 96 L. error. precise Ed. Its failure to be does conclusion, suggest the convictions and sen- opposite of either tences intended; counts one and three af- suggests rather firmed; the convictions and sentences appreciate failed to States, any part thereof, proved or or rob shall ficial status must be before one any matter, conspiring such of such mail or be convicted of to violate section any money, property (United other (2d or of the States Alsondo part thereof, shall, or granted cert. sub nom. offense, imprisoned - Feola, the first -, United States v. S. effecting years; than ten more and if in (No. Ct. 40 L.Ed.2d 285 73- attempting robbery 1123) ; he effect such v. Farr person having custody 1023, petition shall wound the for cert. filed 42 U. mail, property money, (U.S. (No. such other S.L.W. 3379 Dec. 73- put jeopardy 953).) Implicit question ques United by life in that is the dangerous weapon, the use of a or for tion of whether is an element of subsequent offense, imprisoned underlying Despite shall be substantive offense. yеars. twenty-five probability Feola will be relevant here, the issues raised we do hold this Supreme opportunity 1. The long pend has the Court case further because it has been ing decide whether of victim’s and the Feola decision is not imminent.

741 analogous proof Congress a clear issue had held of to voice a need for was knowledge though required even the matter. judgment on question explic- there in statute itly did not history legislative Although of (Pettibone proof. demand such v. of con sparse, the hints is 111 section gressional 197, United States 13 that knowl all indicate intent 542, 419.) 37 L.Ed. Because form- S.Ct. edge crime. to be an element was expressly er section was 254 on based statutory section 111 ancestor of The prior laws, background strongly 254, 18 as former U.S.C. § was codified suggests Congress thought that its against a in 1934 enacted which was knowledge require new law would wheth- (formerly background of several laws Congress specified.3 er or not so and 18 152 codified as 8 U.S.C. § 118, 121, 245) proscribing certain of §§ wording The of former section 254 against specialized law fenses suggests Congress proof also meant (See v. officers. Ladner enforcement knowledge necessary con- to to a 169, (1958) 358 174- United States viction section. Former sec- 209, 199.) L.Ed.2d n. 79 3 175 S.Ct. provided part, pertinent tion 254 legislative history The of former section resist, forcibly oppose, “Whoever shall section was intend 254 reveals that that impede, intimidate, or interfere with ed to extend to other federal officers the any designated certain offi- [of protection prede same kind of that its engaged performance while cers] given spe had cessor statutes to various duties, of his official or shall assault Among (Id.) cialized officers. performance him on account statutes, prior 245 former 18 U.S.C. § duties, [subject his official shall be knowledge, expressly required proof of prescribed punishment].” Assault prior had, and former 18 121 U.S.C. § differently treated in former section consistently interpreted been than the other enumerated The acts. require knowledge proof even proscribe section does not assaults on of- though the statute itself was silent performance ficers “in” the of their du- (See point. Gay United States v. ties; punishable only rather it makes 434-435; (5th 1926) F.2d Cir. assaults on officers “on account of” the Page (W.D.Va.1921) United States v. performance of their dif- duties. This 460; F. Moore United cf. apparently ference in treatment was (5th 1932) States Cir. 57 F.2d attempt inject into the assault offense 1927) (6th Cir. Hlabse States might element that not be 482.) F.2d naturally. “resist,” The words regard analogous etc., imply The law with of is an element fairly requiring Similarly, phrase fenses was proof uniform of the crime. “on (See Pipes of scienter. interpreted account of” has been as in- (5th herently 1968) requiring knowledge States Cir. 399 F.2d of official (dissenting opinion); (United (4th function. United States v. States v. Chunn Taylor 1965) (E.D.Va.1893) 391.) 717, 721-722; 57 F. The Cir. Port- noy Supreme then (1st most recent Court case on 2. Cases decided after in 1934 continued to ment. Former section 254 meant terpret requiring substantively predecessors, former section 121 as mirror includ- proof knowledge. (¡See Sparks ing former section 245. The fact form- (6th 61, 63; interpreted implicitly States er section 121 was cf. requiring knowledge Armes v. United States have led 163, 164.) explicit to the conclusion that statement surplusage. in former section Fur- unlikely thermore,' wording It the fact that one of former section predecessor statutes, implication ex- former section embodied a cleаrer edge a knowl- plicitly required proof requirement predeces- would than of its imply explicitly former section sors other than former section 245. requiring, so did not include a ele- scienter legislative also Finn v. courts. See available state 894.) history 1955) 219 F.2d of section 111 indicates passed former section wanted the structure reflecting respectable disposed” “however and well should therefore viewed as be Congress (Ladner attempt by an to conform the state courts were. v. as- Unit- States, supra, 3.) sault, normally ed has no 358 U.S. at n. a crime resistance, etc., requirement, scienter Even if 111 were section intended as knowledge normally crimes for which is shifting device, forum it was also in- Indeed, required. different treat- proscription. tended to abe substantive given explain ment is difficult assault (cf., It not e. is like a statute removal by any that, on basis other than so g., 1442) or a federal crimi- U.S.C. § wording statute, Congress included merely incorporates nal law which state knowledge implicit requirement an by (cf., g., law reference e. 18 U.S.C. § proscribed by the assault offense former merely 13). The federal law does not section 254. changе effect in the forum in which When cases of Title 18 assault on a federal officer will revised tried; former section 254 it also creates a and former section substantive proscription even were where state do combined and the blend laws (Reviser’s (compare codified as not 18 U.S.C. definition of assault § Note, 111.) Cal.Penal The revision re- Code 240 Lad- § § States, supra, moved the ner different manner in which as- 177; sault had been v. treated former section United States Anderson cf. 1970) 330), 254. The 1948 revision no in- 425 F.2d and authorizes reflects knowledge punishment tent require- to remove the to an extent that state laws 254; ment (compare punishment simple from former section do not al- merely way merge teration was assault Code Cal.Penal 241 with § punishment 111).4 grammat- former sections without undue in 18 U.S.C. Sec- id.; 111, therefore, ical difficulties. tion See Morissette manifests cf. States, supra, possible involving United 342 U.S. at concern that cases as- 266-267, 28.) 269 n. saults federal officers tried in a forum, but also a that the desire legislative history from Clues scope punishment minimum of and Congress intended be an .to the crime be controlled federal law. element the offense are reinforced though Thus, even enactment section analysis purposes that could been have influenced a con- by creating have been served the federal gressional desire to have certain cases offense defined section 111 and its court, tried in federal it was also moti- predecessor. Congress could have vated, law, by as is criminal a desire thought the federal courts would proscribed to deter conduct. protect better from officers proscribed designed conduct than the If the state courts. statute had been sim- (Cf. ply adjust United States v. Goodwin the forum in which the 1152, 1155; tried, eases are a defendant’s Kartman, supra, States v. 417 F.2d at that his victim was a federal officer 895; States Wallace Cir. would be irrelevant. But section 111 538-539; creates crime, a new substantive Lombardozzi, supra, merely change States v. does effect a in fo- 416.) suggestions, There are rum. how- Whether is element ever, depends, therefore, was not concerned of the offense on the quality justice about the was nature the crime that augmented punish- apply 4. Note that California’s when the assaulted is a federal peace ment for on a assault officer does officer. en- tion of certain federal officials’ law proscribe it enacted sec- tended to when An statute is predecessors.5 forcement efforts. designed assault tion 111 and its protect persons. An obstruc- if it 111 is often treated as Section justice statute, on the tion of other simple analog the federal of a state were hand, designed protect ultimately (See, United States statute. functions; official justice an obstruction Kartman, supra, F.2d at cf. persons, protects does Young (5th protecting those so as a means of 160, 163.) When section pur- basic individuals’ functions. The specification viewed, the that section so pose preventing of section 111 is ob- applies only to those assaults that Hargett (See justice. struction of v. are on federal seems to be mere- officers 1950) United 859, 864-865.) States ly jurisdictional element the crime. Supreme in The Court Congress Thus, might have intended to supra, Ladner indi- by proscribing deter all assaults as cated inter- that section 111 should be constitutionally many assaults as it felt preted to reflect that “the view empowered punish; to the reference to congressional prevent aim was to hin- acting perform- federal officers in the duty, drance to the execution of official then, ance federal duties would like carrying and thus to assure the out of most references to interstate commerce purposes interests, federal and was statutes, in federal criminal no be more protect except to federal officers as jurisdictional requirement. than a How- Support incident to that aim. for this ever, simple section 111 is not a assault meaning may in the be found fact that reasons, statute. For two related dis- only it makes unlawful not [section 111] below, cussed the status of the victim engaged to assault federal on officers regarded must be as a substantive rath- duty forcibly resist, official but also to jurisdictional than a er element impede, oppose, intimidate or interfere by crime defined the section. The mis- Clearly such with officers. one re- ignore characterization led courts to has sist, oppose, impede aspects imply the officers of section 111 performance is an element оf the crime. interfere with the of their placing personal duties without them in First, section inter- 111 should not be danger.” (358 175-176.) atU.S. When simple preted as a assault statute be- listing by a statute defines an offense gist pre- cause the of the section is not assaults, disjunctively, vention of rather facilita- several words the words but involving did not the trial of cases various seek enactment sec- offenses adjust against performance tion 111 to the forum for all crimes federal officers (United the victims of which federal of official duties.” v. Lom were officers. States (See (1934).) (2d Cong.Rec. Con- bardozzi 8126-27 (emphasis gress sought only added) ; v. rather make to certain see United “Certain”, crimes triable court. Goodwin (to provide regard, “the enumerated this can be defined look- a ‍​​​‌​​‌‌‌​‌‌‌​‌​​​​‌​​​‌‌‌‌​​‌‌​​​‌‌‌​​‌‌​‌‌​​‌‌‍federal forum for ing scope nses”) ; Kart Ill’s substantive of section offe proscription; sought man make tria- to however, Because, (same).) ble in failed federal court crimes that the cases those designed of section 111 is Thus define the elements of the “various to deter. to purpose statute, was rath- forum the substantive fenses” for which the federal shifting provided, аctually purpose, is er than its forum avoided the that ulti- courts mately proved they purported eases resolve. determines what must be sue shifting support appreciate ignore ef the forum conviction. Failure fact relationship impact the ele this 111 has no is one of the basic errors fect of section regard of those to which the cases that hold that section 111 ments of the crime with easily merely designed shifted; provide as a federal forum. forum is section could provide purport fo cases knowl- have been intended to determine edge assault with is not an defined rum for cases of element crime by holding of assault as for cases section 111 the victim’s status section knowledge. designed provide such “to a federal forum without should, possible, designed the extent be read law is to affect the behavior (Cf. the same manner. Morissette individuals toward the administration of States, supra,, justice, 266- and the relevant behavior of the 269.) Supreme implicated In Ladner the Court individual is not he unless held, justice albeit in a somewhat different con- knew or had notice text, being offense administered with (Cf. should be limitеd to conform to whom he interfered. Pettibone scope reasonably given supra.) Resisting, oppos- to the other United defining proscribed ing, impeding, interfering words by the offense an- (358 176-177.) section 111. generally proscribed other are not wrongful under criminal or even civil justice implicitly Obstruction of laws required laws. Were knowledge requirement. contain a Stat justice obstruction of by offenses described utory of this sort have their offenses terms, wholly (or these innocent even law, roots common at common socially desirable) behavior could be law scienter anwas element of the of wholly felony by transformed into a (E. g., City fense. Seattle Gordon fortuitous circumstance of the concealed (Wash.1959), 54 Wash.2d 342 P.2d identity person (Cf. Re- resisted. 604, 606; Morissette v. United cf. v.wis (1971) United States 401 U.S. 258-259; supra, Unit 342 U.S. 808, 812, 493.) 91 S.Ct. L.Ed.2d (1922) ed 251, v. States Balint 258 U.S. Accordingly, the have been courts reluc- 66 L.Ed. 604. also See say knowledge tant to that is not an ele- Hargett States, supra, F. ment of the non-assault varieties of the 864-865.) 2d at speci Unless by (See offense defined section 111. fies otherwise, federal criminal statutes (2d United States v. McKenzie Cir. interpreted require are to proof be 1969) 983, 986; 409 F.2d the same mental elements that were Rybicki (6th 1968) Cir. required for their common law ancestors. 601-602; sup Burke v. United States (See Morissette v. United 1968) 868; 400 F.2d ra.)6 knowledge Furthermore, re cf. Wallace, supra, States quirement 368 F.2d purpose is well suited to the 538.)7 justice Thus, an obstruction of law. The while the in word “assault” jurisdiction. 6. Morissette decided that tablish federal unless it was clear As the text dicates, otherwise, that intended courts neither of these views of section 111 require proof specification should of felonious is tenable. intent for Because larceny-type offense, applies only conviction of a federal section 111 to assaults on feder- though defining element, even al statute officers is a the offense substantive Moris- requirement. implies regard omitted mention of an intent sette that mens rea with Obviously, interpret- because Morissette element should not be read out of the ing defining larceny-type offense, Congress clearly a statute statute unless so intended. language focuses on such offenses. Nonetheless, apparent Admittedly, principle it is some courts have overcome (United apply enunciated in Morissette was meant their reluctance. States Goodwin (3d 1971) 1152, 1155-1156; all cases where the crime defined 1970) statute has its roots the common law of United States v. F. Ulan (342 202-263.) 788-789.) suggest- logic supports crimes. U.S. at 2d The however, conclusion, tion United States v. their Kartman is backward. 893, 894-895, They necessarily knowledge it is not assume that inconsistent with Morissette to hold that not element of the assault offense defined proof knowledge required Then, is under section 111. because it would not sug- proper interpret parts section 111 seems unreasonable. be different sec gestion only differently (Goodwin correctly would be reasonable if the sta- tion 111 cites tus of the victim were substantive ele- Ladner v. United they ment proposition), of the crime defined section 111. for this conclude that “re sist,” scope etc., given The status of the victim would be not sub- be must as broad a only given. doing stantive element if section 111 were as “assault” has been so solely shifting they wag dog. a forum device if mention make the These tail solely of the status of the victim were to es- courts fail to realize that “assault” need not imply generally peace ment for assаults on state of- a criminal law does knowledge (cf., g., People of the of- ficers e. is an element Garfield (Utica fense, City “assault” section Misc.2d word Ct. light of its context. must be viewed N.Y.S.2d Cal.Penal Code §§ 830.2, 830.6(a)); 830.1, direct- as a whole is Because officer, prevention of interfer- ed toward the assaulted awas per- punishable with federal law enforcement the assailant would ences be ele- sonnel, is an simple and because state law for assault. statute, “as- provides ment of such a word accordingly Section 111 for more punishment in section 111 must read sault” of that which excess narrowly simple be in a impose (compare than would states would 18 U.S.C. statute; showing assault with, g., e. Cal.Penal Code § required. on assaults those involved in the in- vestigation or enforcement of federal section 111 The second reason that laws. simple interpreted should not be as a as- that, to the extent that proscribing sault statute is A statute assaults on prohibits assault, it is best peace section 111 interpreted officers should defining aggravated as- requiring proof viewed as of the sta portion of sault offense.8 The tus of the viсtim. itWhile is conceiva might defined section seems augment offense ble that a state wish to attempt to be an to create a punishment peace assaults of analogous state offense of crime ficers whether not the assailant knew peace assault on a officer. Section peace officer, that his victim was a it is proscribe feder- does not assaults on unlikely extremely it would do so. initially employee; officer or it was (See g., al (1967) e. In re Cline 255 Cal. protection fed- conceived as a App.2d 233, 239; 115, Cal.Rptr. 63 Peo investigative enforcement ple (Colo.1972) eral and law 1083, v. Prante 493 P.2d (See personnel. Ladner v. 1085; People Ill.App. (1972), v. Litch 4 supra, at 175 n. 18 U.S.C. 745, 747; 3d 281 N.E.2d Ford v. 1114; Cong.Rec. (1934).) (Tex.Cr.App.1952), State 158 Tex.Cr.R. §§ Probably motivating 948.) of the enactment deterrent S.W.2d ef portion a slight; the assault of section 111 was fect of such a law would as be congressional gap in the desire to fill a sailants would so discount the risk that defining aggravated apparently state laws assaults: victim non-official was a punish- penal- state mandated increased federal officer that laws section Ill’s (and light wording distinguishes the former of section 111 be This characteristic be) law an the statute cannot viewed as the domi- from other federal crimes with state peace alogs. example, Rather than mod- For murder of a offi nant word statute. etc., ifying meaning “resist,” aggravated the natural cer is not an form of murder. penalties wrong; meaning “as- Either would be to conform to the broader as Similarly, meaning sault,” either case would be the same. courts should limit government property ag theft of is not “assault” to the conform rest Ladner, gravated particular Thus the scienter note is that theft offense. statute. Of ag Goodwin, requirement is a natural element of the case relied on refused gravated implied give impact ei be- offenses need not be the assault offense broad Hargett required (compare ther cause to have done so would have 18 U.S.C. § 1950) impositions lia- similar but unreasonable bility 111 offenses. McNabb v. the other section with grounds 176-177.) (Ladner supra rev’d on other narrowing preference inter- L.Ed. 819 for a The same (cf. pretation applied (1943)) case. or 18 should be Howey (9th Because it unreasonable to cоnvict States v. would be resisting one for an officer he did not know knowledge require- officer, was an a similar ment should be read into the assault offense defined section 111. (See impact. Cong. a deterrent factor. anti-assault also ties would cease be (remark (See Represent Rec. United States Alsondo 1343, 1344-1345.) Sumners).') expansion ative Undue jurisdiction If an assailant attacks one who is covert- federal criminal ceptable was unac ly peace policies adopted officer, a social really implicated un- the statute are those that now is section 111. derlying against simple (Id.) refusing proscription In federal to enact a If, however, simple statute, assault. the assailant seeking peace officer, knows his victim to to avoid creation of be wholly duplicative take on crime the assailant’s acts a more sinis- that was character, society’s ter interest state crime. Its refusal was consistent greater. punishing the assailant becomes in with effort minimize “the essence the criminal assaults trusions criminal exclusive state merely jurisdiction. law” rather than the officer. Soсiety’s concern for the overriding purpose of section 111 amply simple officer is reflected in a as- protection is the of federal enforce- law statute; punishment sault the enhanced purpose ment functions and that is best aggravated offense is reflective by requiring potential served integrity of the state’s concern for the offender knows his victim’s official sta- require- of law If the itself.9 mens rea tus. peace ment for the crime of assault on expressed Fear in this circuit and appropriate officer is to bear an relation sometimes elsewhere that a augmented to the interests that demand element would weaken the effectiveness punishment aggravated assaults, for such of section 111 is based on the idea requirement the mens rea must include a persons charged the offense with would requirement that the assailant knew or government be to convict if the harder should have known that victim was a prove knowledge. fear, had to even That peace officer. Section 111 should in- founded, irrelevant, Supreme terpreted in the same manner as its Court observed in Morissette v. United analog; proof state law States, supra (holding that criminal required. Indeed, should therefore required proven tent was to be under a required hold that is not though criminal conversion even regard to each substantive element of the statute omitted mention of such a the assault offense defined section requirement): course, purpose “Of teaching 111, is inconsistent with the every statute would be ‘obstructed’ supra. Morissette requiring finding [or, in the intent bench, knowledge], case at we assume Congress all, desired to if deter not but purpose that it had a to convict without only certain assaults —those on federal Therefore, it. the obstruction rationale law enforcement officers—and its desire help purpose not does us to learn the prod- deter such assaults was less the by Congress.” (342 the omission U.S. uct solicitude for the individual offi- (emphasis at 259 and bracketed material cer than of concern for the effectiveness added).) with which per- federal functions were (See formed. difficulty Ladner v. proof Even if were rele- supra, 174-177.) vant, however, U.S. at proof knowledge Section of the interpreted therefore not unduly as element in section 111 is not bur- Congress Knowledge desired it to have a broad densome. in this context is underlying policies 9. differently It is because their are fense characterized. Each as has nearly purpose so the same something that both an obstruction its ultimate other than justice aggravated protection person assaulted; offense and an of the each offense purpose by protecting seem to be defined 111. section serves that as- from are, however, probably The two offenses not saults those involved the enforcement all, different but are rather of- same the law. knowledge limited to actual fact victim’s status but also NATIONAL LABOR RELATIONS cludes facts that would BOARD, Petitioner, lead reasonable to believe that the victim was or could en- law GOODYEAR AEROSPACE CORPORA- (Cf. forcement officer. Hall v. United TION, Respondent. 248; States No. 73-2020. Carter v. United States 232.) Appeals, United States Court of Sixth Circuit. Any Congress doubt intended to Argued April 5, 1974. include element of the section 111 offense must be resolved in Decided June defendants, Supreme favor of the as the repeatedly emphatically Court has (E. g.,

stated. Bass 336, 347-350, (1971) 404 U.S. 92 S.Ct. 488; 30 L.Ed.2d Lаdner States, supra, 177-178; 358 U.S. at Jer- (1943)

ome v. United States 318 U.S. 101, 104-105, 63 S.Ct. 87 L.Ed.

640.) Congress If is dissatisfied with interpretation the narrow of section power clarify duty it has the and the the statute. perceived application principle sepa- in in Other difficulties that are of Ashe’s terpreting require knowledge, sovereign Any the statute to rate context. fears that Cali- procedural complications potential statutory jeopardy provisions such as fornia’s double jeopardy problems, (see double are neither creat Penal Cal. Code would bar §§ by recognizing refusing prosecutions ed nor solved state where an assailant has recognize They acquitted crime, element. been of the federal do not problems judicial ‍​​​‌​​‌‌‌​‌‌‌​‌​​​​‌​​​‌‌‌‌​​‌‌​​​‌‌‌​​‌‌​‌‌​​‌‌‍process legitimate either inherent seem to be concerns of this court. sovereignty system. in our dual Fear We cannot convict under federal those law escape that a miscreant unscathed from will did not intend to convict systems jeopardy merely both via double well because the laws of California would (Abbate (1959) prevent trying founded. v. California from assailant 3 L.Ed.2d for a lesser but relatеd offense. Even if in enacting Bartkus v. Illinois section 111 on the relied 684.) ability prosecute offenses, L.Ed.2d S.Ct. These decisions states’ lesser by subsequent Supreme particulars have been eroded that reliance was certain authority. (Cf. problem Neil ill Court Robinson v. founded is a to be remedied (1973) 505, 510, and the courts. U.S. S.Ct. (1970) jeopardy L.Ed.2d Waller v. Florida Even were that double California 387, 392, consequent law U.S. 435.) 25 L.Ed.2d and the risk that assailants might prosecution While Ashe v. be immunized from state Swenson legiti- 25 L.Ed.2d concerns which this court U.S. S.Ct. could impact mately give slight weight, they weight of the dou somewhat broadened the are of relitiga jeopardy clause, signifi- ble affected at best. The law is of California parties” prosecution pre- an issue cance tion of between “the same the federal (397 prosecution; and Because state cedes the state state convic- governments, being separate acquittal prose- sover tion Or does not bar federal prosecutor eigns, party, Thus, if a are not the same Ashe does cution. enter- Thus, ability Abbate Bartkus. tains prove scienter, doubts all undermine about Ashe, merely Waller, day he need a case decided the same await opportunity prosecution. outcome of the state the Court declined either suggest disapprove Abbate Bartkus or to

Case Details

Case Name: United States v. Juan Ramon Fernandez

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 13, 1974

Citation: 497 F.2d 730

Docket Number: 72-2088, 72-1408 and 72-2089

Court Abbreviation: 9th Cir.