United States v. Thomas F. Danehy

VANCE, Before KRAVITCH and CLARK, Judges. Circuit PER CURIAM: Danehy appeals Thomas his conviction 2, 111, under 18 and 1114 for U.S.C. §§ that he resisting, opposing, impeding, and tried to flee into a forcibly residential devel- opment. interfering with Coast while Guardsmen

they engaged performance agreed Both sides are ran their We reverse his conviction and duties. aground. The Coast Guardsmen radioed to remand a new trial below. Cortez for assistance and a Coast Guard County cutter and Manatee deputies two dispute.

The of the case are much in facts came to their Two Nevertheless, aid. more Coast try gen- we shall to describe Guards- men those already reinforced on seven- erally place night what took on Here, teen-foot again, craft. two March 1980. A distress call came into accounts differ as to transpired. what Cortez, Florida the Coast Guard Station at personnel Two Coast night. that Guard The Coast Guardsmen assert that the cut- seventeen-foot, dispatched open were in a ter light, they turned on its blue that identi- deck, for tri-hulled craft to search the dis- through hailer, fied themselves a loud and They tressed vessel. were ordered to they that Danehy informed he that should Waterway search the Intracoastal between prepare to be boarded. The seventeen-foot Bay. Cortez and Sarasota craft proceeded then alongside Danehy’s Someone, boat. according version, to this wife, During appellant, this time the his aboard Danehy’s craft responded with ob- neighbors cruising and his in the In- they scenities that would not be allowed to Waterway Danehy’s tracoastal aboard board. They then boarded the vessel. The fisherman, twenty-eight sport foot the Not Coast Guardsmen claim that while being met Fishing. just two vessels handcuffed, frisked and Danehy rammed Bay. north of The Coast Sarasota Guards- one of their number into the bulkhead twice they appellant’s men claim hailed the vessel and began kicking at the Coast Guardsmen. inquired and whether it was overdue. The He bodily had to be carried his off vessel. boat, people Danehy’s however, aboard place claim no conversation ever took and Danehy and passengers give differ- they merely saw a small unlit vessel ent account of these They events. claim hovering Both shadows. sides are the Coast Guard boarded without however, agreed, that contact was soon bro- warning requesting permission or and with ken north Danehy going off towards drawn weapons. Danehy was ordered on Bradenton Coast Guardsmen head- deck and after a period considerable arrest- ing south towards Sarasota. ed. He he claims was handcuffed and forced to He kneel. asserts that when he Later, Coast Guard craft turned back attempted to stand he was knocked down to the north. Coast Guardsmen claim and that attempted he never any- to kick boat Danehy’s attempted ram them. one. He passively claims he resisted They maneuvered their vessel out of the limp, remained thereby forcing the way, appellant steering and the began Coast carry Guardsmen to him off the ves- circles, causing boat in the Coast Guard sel. forcing boat’s motor to stop cavitate dead in the water. The Coast Guardsmen Both agree sides passengers that all the Danehy’s claim that vessel directly headed were then taken off Danehy’s They boat. them, only turning away towards when boarded the Coast Guard cutter and arrived they their displayed weapons. early at Cortez in the morning of March 23.

Danehy has different version these The appellant claims the trial court made claims events. He that an unknown craft three reversible errors. We turn to the running speed at full lights these, and without first of the contention dis- upon quickly. closed his vessel Danehy trict court should have Danehy allowed apprehensive claims he became and en- call three witnesses to testify reputa- to his gaged in evasive maneuvers. He asserts tion for truthfulness. II.

I. Danehy’s claims that under United second contention is that Hewitt, (5th gave improper jury trial court instruc- F.2d 277 Cir. necessary whether it was have been allowed to introduce evi- tion on Da- should nehy know it was federal officers he was reputation of his for truthfulness as dence resisting. Tied in with this is credibility had been attacked. We disa- improperly claim that he was denied an gree. subject instruction to the on the precisely issue We addressed in resisting an unlawful arrest. Jackson, Danehy’s theory of defense was that ac- here, 1979). There, as tions, any, taken himby prior to the credibility “attack” on the defendant’s con boarding justified of his vessel were be- vigorous a cross-examination and sisted of cause he did identity not know the of his by prosecutor out of dis pointing pursuers and therefore he acting was crepancies between the defendant’s testimo person property. defense of his and his Af- ny and that of other witnesses. This does boarding, ter Danehy claims that his resist- question of the reputation not call into ance, any, justified if resisting as an defendant for truthfulness. The mere fact illegal theory arrest. Because of this of by that a witness is contradicted other evi defense, imperative it was for the defense dence in a case does not constitute an at to have the instructions. We upon reputation tack for truth and ve turn first to the issue of whether Danehy States, racity. Kauz v. United 188 F.2d 9 was entitled to an instruction on his lack of 1951). (5th Cir. knowledge identity as to the of the Coast personnel. Guard Danehy claims that under Rule 404 Danehy requested following jury in- the Federal Rules of Evidence an accused struction: may always bring perti a forth evidence of reputation nent character trait that his Thus, to establish the offense of forci- pertinent for truth is in the instant case. bly resisting, opposing, impeding, or in- reject reasoning. We this line of Since terfering with a member of the Coast Danehy trying to offer evidence to bol performance in the Guard of his official ster himself as a witness rather than to charged indictment, duties as in the there pertinent show a trait of character that is are four essential elements which must be charged, to the crime it is Federal Rule of proved beyond a reasonable doubt: governs. Evidence not that Rule First, forcibly the defendant re- 608 specifically states that “evidence of sisted, impeded, opposed, or inter- only truthful character is admissible after (cid:127) with fered Coast Guard the character of the witness for truthful indictment; members described in the ness has been opinion attacked or repu Second, the Coast Guard members tation evidence or otherwise.” Government officials, were Federal as described pointing counsel out inconsistencies in testi above, engaged perform- then mony arguing that the accused’s testi their official ance of duties as mony is not credible not does constitute an charged; and reputation attack on the accused’s Third, that the defendant did such acts meaning within the truthfulness of Rule willingly; Thus, Danehy may attempt not Fourth, defendant did such testimony by bolster his evidence toas knowingly. acts Therefore, reputation for truthfulness. properly district court judge gave denied re The trial the above instruction quest testify to call witnesses to his exception point with the four. He sub- reputation for following truthfulness. stituted the for it: kind, might necessary justified to show one be

It not in exert- resistance, ing an element of and an hon- people being forcibly defendant knew est mistake of fact would not consist- resisted, opposed, impeded, or interfered ent with criminal intent. time, were, at that Federal officers duty; long an so as S.Ct. at 1264. This carrying out official all-important point illustrates a reasonable beyond established prosecution under 18 U.S.C. de- were, fact, Fed- doubt that the victims (1) fendant must either the person know he acting eral officers in the course their is impeding is (2) a federal officer or en- duty willfully re- and that gage in conduct towards that individual sisted, impeded, opposed, or interfered which would constitute a crime even with them. federal officer. judge We that the trial was in hold below, In the trial produced gave when he this instruction. This error which, testimony if believed jury, contrary instruction is to United permit would prior conclusion that Feola, 671, 679, 1255,1261, 420 U.S. the Coast Guard boarding, Danehy believed (1975); 43 L.Ed.2d 541 United States v. that he was defending against himself Ochoa, 1976); persons. intrusion unknown According Young, and United States to the decision in United Young, States v. (5th 163, 464 at 1972). Young that F.2d 163 Cir. states a trial court should have the jury instructed that it could not absolutely not be find may defendant held liable Danehy guilty the jury unless believed that a assaulting government officer when resist, intended to forcibly oppose, acts from a mistaken defendant belief impede or interfere with the Coast Guard is threatened with an inten that himself personnel, and that Danehy could not so private goes tional tort citizen. Ochoa intend if he acted out of a reasonable belief deadly force, that even further states the Coast personnel Guard circumstances, proper be could em “strangers who intended to inflict harm ployed by the if he reason could upon [Danehy].” Although Id. the jury ably believe that the intruders were a instructions by Danehy did not person. Supreme to threat his Court in precisely to conform the instructions re Feola stated that “the situation one quired by Young, the failure of the trial legitimate where conduct becomes unlawful court offer to the correct sua instructions identity solely because of of the individ sponte plain error. Id. at 164. 685, 420 agency ual or affected.” at U.S. 95 Further, at explained S.Ct. the Court III. that: Danehy also contends the trial areWe not to be implying understood as court committed reversible error by re knowledge defendant’s state of fusing to deliver his on instruction is never a relevant consideration under justifiable resistance to an arrest not based require 111. The statute does crimi- upon probable cause. We conclude that intent, may nal and there well be circum- case, under the circumstances of this Da ignorance stances in which of the official nehy right forcibly had no to resist arrest, person status of the assaulted or resisted Coast Guard even on unlikely supposition that negates very the arrest was existence of mens rea. unlawful. The trial court therefore committed er no example, For where an official fails to refusing ror in to deliver proposed identify purpose, himself or con- instruction. might duct certain circumstances rea- sonably interpreted as the unlawful Speaking for court in United States Johnson, use force directed either the defend- 230, v. (5th 542 F.2d 233 Cir. or In a property. Judge Morgan ant situation of evaluated the current vitali 1316 forcibly holding the section that a citizen right law to cannot of the common

ty He concluded unlawful arrest. resist resist an unlawful arrest. subject case law on Fifth Circuit

old against This decision is a tradition exist- value” precedential its “sapped of had been ing for years hundreds of in both English authority of decisions persuasive and American common law.1 appeals. Those other courts from the judge’s opinion it is contrary holdings the common law recognize decisions the United Supreme States Court. Never- arrest is not based resist an right theless, there is respectable federal and cause, though may suited probable upon law state supporting the majority opinion.2 era, significant has no past to a have been My reasons for dissenting are society ready in our own where twofold. play role to First, majority opinion is available to redress to the courts is not access in accord See, e.g., United misconduct. police such precedent. Second, Court Cunningham, 509 F.2d 961, v. 963 the rule announced is too broad. Martinez, v. (D.C. 1975); Cir. majority reasoning citizen, is that a United 79, (2d 1972); F.2d 82 Cir. 465 arrested, unlawfully go along should Simon, 474, (7th Cir.), States v. 477 409 F.2d station, police make bond majority [the denied, 79, cert. 24 U.S. assume he policeman and later sue the can] Cf. United States (1969). L.Ed.2d 79 for the tort of unlawful arrest. The citizen Ferrone, cert. (3d Cir.), 389-90 justified using passive is not even force denied, to resist. (1971) (no right to resist L.Ed.2d 430 search But warrant). search pursuant to invalid analysis problem An has some dif- Moore, see United States requires ficulties. It consideration of these 1973) (dictum). Although factors: may there be some residual role for the (1) The extent of the unlawfulness of right appears common law where it that the the arrest. The technical invalidity of an arresting engaged officer is in a “frolic of otherwise valid arrest warrant at one ex- Martinez, see own,” 465 unjustifiable treme and a totally war- 82, F.2d there was no such situation here. rantless arrest with force at the other. We conclude that the trial court’s error in (2) The extent of the force by used the instructing jury the on the element of in- arrestee in resisting. Killing at one end requires tent under section 111 a new trial. spectrum passively and “going REVERSED AND REMANDED FOR limp” at the other. NEW TRIAL. (3) The extent the by of force used the CLARK, Judge, concurring Circuit arresting officer and the circumstances part dissenting part: surrounding the arrest. For example, is home, I concur in the arrestee in his is Parts I and II of the the offense a majority opinion and dissent respect III, misdemeanor, to felony Part or a is the arrestee Case, Hopkin Huggert’s Eng.Rep. (a) justifiable 84 1082 The use of force is not under (K.B. 1666); States, John Bad Elk v. United 177 this Section: (1900). (i) 44 L.Ed. 874 S.Ct. to resist an arrest which the actor officer, being by peace knows is made a cursory 2. A review of the law of the various although the arrest is unlawful .. . respect right states with to to resist an unlaw- I find no clear federal rule other than that set ful arrest indicates that 16 states have abol- Supreme out in the Court cases cited in the right by ished the common law to resist either helpful subject text. A annotation on the is in action, judicial statute or and at least 10 states 44 A.L.R.3d 1078. This annotation notes sever- recognize vitality the continued of the common subject. al law review articles on the right. law The Model Penal Code 3.04(2)(a)(i) reads as follows: (2) Justifying Necessity Limitations on Use of Force. hanged. to to flee if force is not used to make The apt judge trial refused to arrest, covering give right the the officer an instruction on the to resist Supreme The wrongful a arrest. Court charging tracks for arrest reversed and held that an instruction should resisting? the arrestee with have been given to the and that (4) the relation- philosophy One’s about offense of party resisting the the ship government the and the arrest between would be reduced from citizen, what would the effect the have particularly been murder if the officer had had the prohibiting amendment arrest ab- fourth arrest, to right to manslaughter. probable What a warrant or cause. sent would be murder if officer had the My conclusion citizen should right might to arrest be reduced to man- and, to arrest right have resist unlawful slaughter by the fact very that he had no charged with of resisting, the offense right. officer, such So an at common right receive an instruction on the to resist law, was not authorized to make ar- an especially arrest. This is true cir- under warrant, rest without for a mere misde- cumstances where there is no arrest war- meanor not committed presence in his rant, the not citizen does have reason to ... If the officer right arrest, had no to he has committed a criminal believe offense party the other might illegal resist officer, presence re- attempt him, using to arrest no more bodily no to sistance does harm the officer. force than was absolutely necessary to evidence, Danehy’s Under version of repel the constituting assault the attempt to was entitled instruction in to arrest. case. accept- If account was States, John Bad Elk United 177 U.S. jury, jury weigh for the ed 529, 534, 729, 731, 44 L.Ed. 874 rights vis-a-vis the officer. (1900) (emphasis supplied). Court United States v. my opinion, In none cases cited Re, Di 332 U.S. 92 L.Ed. majority support the conclusion reached (1948), following had say about can that a citizen never an resist unlawful right to resist arrest: arrest. The majority enacts a new federal makes, also Government and sever- disagree I statute. with the majority’s conc repeats, argument al times ef- Johnson, lusion that United States v. that the probable fect officers could infer controls this from the fact that Di Re did .cause Johnson, case. the defendant was one of arrest, protest his did not at once assert in an persons being three automobile chased innocence, silently and accepted the suspected by FBI officers who the three of go along police command to to the sta- being implicated in robbery. a bank right tion. One has an undoubted to flashing light red siren agents’ and arrest, resist an and unlawful courts will car on was as the chase began. A minor uphold right of proper the resistance in occurred, collision and the cases. out the jumped pursued of gun car with in pointed hand and it at one the agents of Id., 332 at 68 at (empha- U.S. S.Ct. 228 who fired his weapon. The court stated: added). argue sis One could that the state- However, in Re ment Di is dicta. this also Thus we invalidity hold that the mere holding Elk, is the in Bad John 177 U.S. at a law officer’s conduct under the fourth by decided the amendment, more, jus- without can never Court 1900. tify deadly threat of in opposing force the officer. John Elk Bad was ease where the arres- Ibid, arresting tee killed (footnote officer and was con- omitted). at 233 facts victed of murder and by jury sentenced Johnson differ sufficiently from the stead, sufficiency of the they involved the panel being considered present case support to a conviction for resist- evidence a different result. warrant to question arrest. That is not before ing us. Cunningham, v. States United given instruction had been and If 1975), persuasive. is (D.C. Cir. not convicted, elect had been I would to he resisting case, the defendants were affirm because officers testified police lineup after a court in a being placed one bulk- Danehy rammed of them into the they participate order directed began How- kicking head and at another. Thus, facts are too different lineup. ever, not our theory. Under case. instant a decision in the influence acquittal system,3 permits if the law an (2d Martinez, v. United States which is upon any theory the defendant officers inapposite 1972), because Cir. evidence, some the de- supported by then remarked: cause. The court probable had fendant is entitled to a instruction on probable the arrest without “Even That subject. holding is the John justified in re- cause, was not Martinez Elk, supra. Bad None of the cases cited he dis- force excessive sponding majority involve the factual or either F.2d at As I understand played.” 465 position stated I legal by Danehy, and think us, Danehy the case facts of before court the in- given the trial should have resisting only passively he was struction. claims that Thus, I force. that he used no

arrest and giv- have been the instruction should

think

en. Simon, v. 409 F.2d 474

United denied, 396

Cir.), cert. involving a (1969), a case

24 L.Ed.2d held there arrest where the court narcotics ALLISON, Jr., al., Plaintiffs, Leonard et had cause the officers probable was and leading them to believe Bacas, Fitzpatrick, information Pete R. D. J. al., country. Herndon, was about leave Simon M. et Elmer home, Plaintiffs-Appellants, them They went identified selves, told were there to they Simon agents him. arrest Simon told WESTERN UNION TELEGRAPH agent going anywhere kicked one COMPANY, Defendant-Appellee. they put could on him. before handcuffs No. 80-7698. Ferrone, (3d 438 F.2d 381 war involved invalid search Appeals, United States Court of Revenue being rant executed Internal Eleventh Circuit. kicked agents, and the defendant Service July 19, 1982. agents. and elbowed think circuit court I do not of these involve

opinions are relevant none because to the court. In- instruction weak, insufficient, inconsistent, Appeals the District of or of doubt- 3. As the Court of for credibility. He has ful is entitled to have such Columbia Circuit said: testimony though even instructions the sole intend the case We do not to characterize (cita- support of the defense is his own.” strong as or weak. for the defense either omitted). tions unnecessary, That for “in criminal cases States, 1950, U.S.App.D.C. v. United Tatum presented entitled to have 617, quoted approval relating theory instructions of defense States, 1967, 376 Strauss v. United 5 Cir. there is in the evi- which foundation 416, 419. dence, may though even the evidence

Case Details

Case Name: United States v. Thomas F. Danehy

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jun 29, 1982

Citation: 680 F.2d 1311

Docket Number: 81-5216

Court Abbreviation: 11th Cir.