Zedekiah Suggs v. United States

1272 appropriate remains

There cided that resort to issue levies was whether decision to levies to collect taxes he purpose appellants function. The non-ministerial still owed. privilege under consideration Affirmed. officials, exercising dis their free worry cretion, from the that a mistake result test lawsuit.8 challenged action is ministeri

whether per al or non-ministerial not the office height, se its function whether discretionary itself nature litigation im the threat of SUGGS, Appellant, Zedekiah assigne pede the official to whom v. Thus, low- d.9 while actions of America, UNITED STATES ranking administrative official are more Appellee. ministerial,10 likely privilege No. 20463. has been extended as to administrative judicial person well as officials Appeals United States Court of position nel whose is low as well District Columbia Circuit. high.11 those rank whose Argued 8,May 1968. Ninth a similar case 8, Decided Jan. 1969. Circuit,12 equivalent in rank official Lynch levy in to Mr. issued a the mis

taken belief that a bank account in

name was in fact the of wife tax-delinquent

of her husband.

court held that the official was immune suit, complete

from civil are in agreement. A determination to when highly can

levies judgmental, and should issue is having

and those

sponsibility to decide such apprehension be divorced from liability possible arising civil decision, vigor fearless,

such a if “the

ous, poli and effective administration of 13 government” preserved. cies of is to be Washington

As chief of the area office force, Lynch’s

collection duties just

cluded decisions of that character. Lynch acting

We hold that Mr. capacity de- nonministerial when he 2, g., Gregoire Biddle, supra 8. E. v. note 16 S.Ct. 631. See cases collected in supra James, 2, Thus, 177 at 581. note at n. 196. appellee even if Cohen been involved supra Matteo, 3, 9. See Barr v. note levies, it would have been in conse- 573, at 1335. See also U.S. S.Ct. quence general supervisory of his role as supra 1, Jaffe, 219. note at chief the Internal Revenue Service, clearly and as such in a non- Matteo, supra 3, 10. Barr v. note 360 U.S. activity. ministerial 573, 1335. at 79 S.Ct. Wood, supra 12. Bershad v. 2. note Matteo, supra 3, 11. note 360 U.S. Barr v. 570, Spalding 572, 1335; Matteo, supra 3, v. Barr at 79 S.Ct. note 360 U.S. supra Vilas, at 161 U.S. at S.Ct. Bress, Atty., Q. U. S. Frank Nebeker and Glanzer, Seymour Attys., U. Asst. S. brief, appellee. for Mr. John Special Gill, Atty., G. Asst. U. S. also appearance appellee. entered an Judge, Chief and Before Bazelon, Judge, Wilbur K. Circuit Senior Miller, Judge. Burger, Circuit PER CURIAM: appeal convictions dangerous weapon assault, with a assault robbery. was that The and for Appellant cab, a held taxi boarded a throat and said knife the driver’s “This it.” take money taxi driver’s departure other missing. A handkerchief woman observed assault and help; passerby, called a one Law- rence, responded taxi and assisted the repelling Both driver in the attacker. Lawrence suffered knife driver and the cab and the cuts. then fled ob- driver him. Meanwhile an followed police appre- server called the had who Appellant. hended testified witness Lawrence searching lant taxi driver’s appre- pocket. arresting from the hended two blocks place im- the attack Ap- mediately identified the victim. whiskey pellant had a small bottle of no and made hand when arrested made no statement. resistance and Appellant and officer searched found Jr., Boggs, Mr. Thomas Hale Wash- knife the cab driver’s false ington, C.,D. whom Mr. with J. Gordon wrapped in a handkerchief (both court) appointed Arbuckle promptly identified the cab driver. brief, appellant. At the station answered Kelley, Jr., coherently during James E. Asst. U. S. routine Atty., booking with process.1 whom Messrs. David G. “Stop Suggs Snead, 1. The dissent describes events in here.” hardly forward, placed truncated form which really reflects arm what reached one around place. back, placed head, pulled record'contains Snead’s palatable sequence said, throat, somewhat less knife “This is at Snead’s suggests, events than the dissent it.” pointed Thomas, sweeping when her sidewalk Danaher out Mrs. lately away, episode, screamed before facts a few saw the Court. feet Suggs, door, telling passenger her her husband are in the rear and ran to taxicab, driver, police. Joseph Lawrence seat directed the to call the One preceding just prior Appellant testified with charged produced been but he offenses none as witnesses. time of the drinking gin had no friends and prose At the close of the evidence the period memory or of the events those inquired cutor excuse whether he could noon left a tavern before and after he psychiatrist waiting he and police station. until he awakened Judge stage Appel that at stated if he had numerous His counsel asked previous lant had not introduced “some evidence drinking for and he said arrests responsi raise issue criminal he had. bility.” point Defense counsel made no missing of this but asked if a witness Appellant Before trial had been com- given Judge instruction would be and hospital to a mental for examina- mitted prosecutor said he would do so2 The competent tion and found to be to stand granted asked and was subject no mental illness stolen and this was alleged the time of the offense. Defense objection. with no When the interrogated Appellant his Judge instructed the as to the ele health and challenged habits and when ments of he advised it as whether he was tender- Appellant prop must find that “took the ing insanity answered, a claim of he “ * * * erty unlawfully and with intent to con yes. guess you say permanently it vert to his own use. insisting am on this basis. He’s he ” * * * On the issue of intoxication testify wants to you as to the fact that he is Judge it say, de a chronic alcoholic. ” * * * Appellant fense to He also asserted that drunk to form an intent to steal. lant claimed he did not know what he was expressed Counsel the defense doing satis he when became drunk and that charge. faction with the was drunk at time of the incidents by charge. covered Appellant charge The District now attacks the as Judge advised that he would allow wide defective on the issue of intoxication and allowing argued latitude in evidence on “plain that under the error” rule testimony Appellant claim. Judge his have, re- District should sua sponte, ferred to various friends had been ordered that defense counsel working ing Suggs coherently on his car close to cab .answered all screaming questions. Suggs was attracted Mrs. U.S.App.D.C. Thomas. He ran across 133, 141, the street 391 F.2d but, fearing “might Suggs (1968) (Danaher, J., make a mistake dissenting). actually throat,” “appellant [Snead’s] cut he took the cabbie’s false persuade stop. Suggs tried to The lat money”, Judge left his real as kept and, ter his knife at it, Snead’s throat remotely Bazelon describes does not it, suggest Lawrence saw “seemed to have been was unaware of searching pocket.” [Snead’s] breast doing. Law what he was He took an finally rence “took a chance” and seized which could have been rolled bills or a Suggs holding hand which was the knife. customarily billfold which cab drivers car severely by Suggs ry Lawrence cut pocket. Only in a breast later requiring graft hospital develop a skin treat that his loot turned out —several by Suggs ment. Snead was cut on his hours sonably later —to false teeth. It can rea Suggs chin and hand. left the cab episode, be assumed that dur ing Lawrence’s intervention and was followed wounded both by Snead. rescuer, regarded cabbie and his was not Washington Meanwhile schoolboy Officer had re them —or a—as sponded prank. to alert. As the of approached Suggs, ficer the latter was taking Suggs Judge drink from a small bottle. going said “I am to assume in placed light under arrest and the officer re of the record that have made attempt him covered from a three-inch knife. and he [the ‘witness’] was not Washington booking peculiarly your testified that when people.” available “line-up out he made sheet” dur by prior into to take Appellant’s convictions fails opened line of drinking. Appellant account claims pulsive rely inquiry former arrests bolster into the District Court error it was exculpation Hospital of intoxica report claim to because Elizabeths on the St. showing objection to on his tion. competency Government stand trial by defense the crime such arrests was countered of the time of mental status as charged. contentions essential also contends sponte theory sua The court allowed defense. should District showing impeachment it as to the issue of precluded relevant convictions; eff tent to that tes- and instructed former request timony ect.4 made no no recollection he had by prior impeachment con question fair exclusion of made a of the time events impossible; failed reasons com- victions and to advance that trial evidence acquittal; for that under Luck pelled a that course verdict States, U.S.App.D.C. 151, v. United 121 counsel ineffective. (1965), 348 F.2d Gordon Unit 763 part raised For the the claims on most U.S.App.D.C. ed F. 127 383 any appeal comment.3 do not merit (1967), denied, 2d 936 390 U.S. cert. con on evidence 88 S.Ct. 20 L.Ed.2d 287 prior (1968); dition at the time of arrest and indeed when sketchy at best. questioned directly Judge alcoholic tendencies was by made he eye Neither nor the other any victims clear without reservation that signs of drunken testify. witnesses observed wanted to ness; arresting observed The claim of ineffective assist whiskey when had a bottle of ance of counsel is one be evaluated Ap that he was arrested but testified by both reference to omissions pellant coherently routine answered all or errors of counsel and a considera booking. pre-trial tion of the entire Our record. examina psychiatric neg medical examination was tion us leads to comment at the outset any ative and there was no this is a claim must be which kind which warranted sponsibly urged it considered before Appel to take the actions which appeal; charge urges on it is not be made lant now should have been taken. totally lightly though That contention is appellate without basis even counsel’s or warrant on this record. duty may require it case. this of the record satisfies case a review The claim that the court should charge against sponte us that trial —or no have sm impeachment excluded untary previously appointed excuses nor neither intoxication This counsel to mitigates However, represent Appellant appeal the case a crime. on specific intent, lawyer it embraces moved withdraw namely, ground presented intent to steal. non- the record no questions. frivolous ac- intoxication U.S.App.D.C. 133, 391 of rob- time of the offense cused (1968). important bery, therefore, mat- becomes ascertaining repeti- you by wheth- way ter of will consideration first recite to you criminal done with a man er tion even should find may have been drunk degree That the accused am was intoxicated to the ordinary going you, word is sense of that not be to describe to it would drunk been so He must have Count 1 sufficient. defense to count other than forming incapable only an intent as to be for the reason Count say, charged steal. or to car- criminal here offense capable namely specific intent, of consciousness the intent ries mitting a crime. to steal. Now, The Court intoxication: as to the a matter of law that vol- instructs regard appeal pressed on withdrew —was claim appellate who “plain error” to must constitute be a warranted.5 predicate Fed.R.Crim.P. for reversal. argues dissenting opinion 52(b). error, plain or other- is not con so instructions that the wise. deny Appellant trial. fusing a fair grasp how the fail We however, that the Appellant, claimed instructions. confused these have been the instructions to follow robbery infer told When recently stolen instruction recent, unexplained possession, the property “perhaps” deficient. jurors just that an essen- been told As relies on. is not the claim dissent robbery component tial dissenting position that that such intent to steal and deficient, on intent was struction negated by intent could drunkenness. es stated that an togeth- uttered The several Ap element sential course, together. er, be read “unlawfully pellant standing itself, instruction, last even permanently intent to convert reasonably con- lend to a does itself that the to his own use” and then the learn- struction which would obviate ing necessary steal immediately preceded it. which had could not be only jury Not have the benefit the Immediately intoxicated to form it. of all there an the but was they thereafter, jury the told that was of from which abundance to, might, required not infer but were Appellant could concluded that was robbery guilty Appellant that of finding require intoxicated as to so knowingly possession if he had in his specific incapacity to form the intent. property adequate explanation without complainant. to It not difficult course isolate from is taken the Appellant’s an individual sentence series trial counsel did not highlighting spe- thereby and, therefore, any its to these instructions instructions suggests Appellant failure of the We are to note that constrained following subpoena to available wit- lant’s brief contains the state- trial counsel daily mani- ment: nesses and the cab driver’s substantially Appellant to the un- believes the fest contributed further proceedings daily fairness of the trial court taxicab manifest the inability witness, Snead, light Appellant’s plaining to re- could have alleged in the indict- furnished relevant evidence in the case member the events (Emphasis added.) Appellant in that has been told ment. passenger Appellant there was another 44-45. This is Brief picked up record; time when from the it is not cab at the he was evidence drawn proper argument initially court; it is mat- further the address specu- ter record and at best is to Mr. Snead was outside the inappropriate present submitted that lation. It to home address. initially “argument” record, the can be shown matters outside gave address, has been home rather than 6th which counsel asserts his Street, (at Federal & D about told. Rule 28 of the Rules N.E. the corner Morgan See, g., Appellate home) four blocks from this factor Procedure. e. his (9th negative would tend to the belief that United 1967) ; Bunn he could have Cir. formed the robbery (5th Cir. If this claim since man F.2d 809 a reasonable expected any validity give would or factual basis to his indeed had correct intending present address counsel' —-as while to rob the cab it was incumbent appropriate it can be driver. Further shown from soon as it was daily leave of this it in a brief —to seek the manifest an additional mention passenger present the District in the cab at affidavits the court demonstrating picked up, such evidence time Court why complaining impeach would tend to was in fact available testimony support trial on new- also lead a claim a new witness’ development exculpa- ly discovered evidence. further tory Accordingly, evidence in the case. requisite spe- obscuring find that he meaning lacked the collective cial impact cific intent. taken as instructions n however, approach, however, Such Appellant argues whole. further, misses on the trees and to focus tends with that regard court’s instructions accept the notion can Nor the forest. possession intent and super- give jurors instructions goods confusing of stolen were so scrutiny appellate critical cursory deny him trial. fair Even a provide. that con- We are satisfied can instruction, examination dealing whole, than sidered as rather margin,1 pertinent part in the set out in context, parts taken out of objection demonstrates charge abundantly the essential covered is sound. elements. trial court Affirmed. to convict defendant government BAZELON, Judge (dissenting): Chief that, prove beyond doubt a reasonable alia, convicted inter the defendant had a dangerous weapon. intoxication, he stat and assault with a intent to But rob. allegedly up ed, negate presence held He point cab driver at of a Then, of a knife. The offered his he told cabbie next breath money, principle” false some a “further there was de permit handkerchief. them to infer the that would “knowingly passerby guilt came the rescue if he fendant’s jured, possession as was cabbie. * * street, fell, complainant cab, cently left walked across the up, taken got possession. explain three continued walk and * * * ” standing statement, followed four blocks. The cab him at last jury alone, clearly The a distance. erroneous. safe When the ar- guilt appellant from a rested few minutes later infer defendant’s not they whiskey unexplained possession unless a bottle. was form not too to drunk found that major defense at trial requisite specific intent.2 the too to had that he was intoxicated have robbery. Government, however, required specific asserts intent the “coming together, argues the He now evidence the instructions agree. jury the together.” But as that the to a reasona- such had have read be jury agree that the the instructions seem doubt on this score. heard them ble concerning possession say unexplained obviates intoxica- compel jury specific to rob. intent need find a tion was sufficient a the principle “Now, further There still a intoxication: Court in- you your you in connec- as a structs matter of law volun- consideration have prin- tary and that is the intoxication neither excuses nor miti- tion with Count possession gates However, ciple of recent- a crime. in the of known as case of law you regard, ly specific intent, goods. And in that stolen embraces a you find namely, should are instructed an intent to steal. knowingly in his had of of this defendant intoxication the ac- possession cused the time of the offense of rob- case, complainant bery, therefore, important taken from the becomes an mat- ascertaining to ex- defendant has and that the ter of consideration in wheth- satisfaction, your possession plain er it was done with a criminal intent. you may may are not the accused have been drunk —but ordinary guilt de- to —infer therefrom sense of that word is not charge.” sufficient. He fendant on the must have been so drunk incapable forming to be of an intent Vaughn say, incapable and Worrell United rob or to steal. That Cf. (CADC committing Nos. Feb. consciousness 21067-68 of that he is a crime. concerning mitting un- conviction for incorrect statement in thing possession the last explained absence intent. jury point emphasizing heard connection made no that knowl- edge robbery charge, they precondition told an essential principle” guilt. represented a inference “further And even if happened upon intoxication is defense. to seize the rule that the word “know- explanation ingly,” only legal was no other whatever an alert There mind would relationship that, these two law, between been confident a man reasonably layman principles. “knowingly” pos- could be drunk to unexplained possession Thus, in- assumptions infer that the sess. on the most supersedes instructions, the instruction on struction favorable there re- danger intoxication. mains a real that the possession negated unexplained a defense “knowingly phrase Inclusion of drunkenness. possession” unexplained possession remove does Defense to the may crime it the error. Whatever other instructions below. Therefore we constitute, knowledge illegal posses- objection entertain to them now taking acquired wrongful sion after the they “plain contain errors or defects supply requisite cannot affecting rights.”3 substantial I am robbery. conviction tent they reviewing satisfied do. thought, however, er- appeal, an error for the first time jury finding ror is harmless because crucial consideration must be overall knowing possession the offense impact error on the fairness finding equivalent substantial trial, not trial failure to counsel’s appellant capable forming object.4 Here, as a result of defec- shortly before. instructions, highly probable tive it is they But not told still had ap- that the never even considered to find a Instead pellant’s principal, knowing apparently sub- were led to believe that unex- plained possession prin- stantial,® Accordingly, was a “further defense. I would previous ciple” per- robbery.5 reverse the conviction for 52(b). specula- 3. F.R.Crim.P. was sober. But these jury, ap- tions such a not for an U.S.App. pellate court, 4. Harris to resolve. Borum v. United (decided Sept. U.S.App.D.C. 48, 52-54, D.C. 402 F.2d 656 (1967) (dissenting 599-601 opinion Burger, J.). In the context of the other evidence intoxication, appellant course, opinion the fact Of the court’s indi- cates, appellate arguments ought the cabbie’s false teeth and left his real money suggests defense rest on matter outside the record. How- presented ever, regard least a issue of substantial do reference to such may, course, speculate argument necessarily fact. One in brief or matter long mistook lower denture offensive —so as its source is clear- ly identified, in a handkerchief a roll of as it was here. (or billfold) wrapped quoted passage bills even a from the brief of court- handkerchief; suspected appointed or that he there of the court’s compartment containing opinion. was a hidden We could not be and drugs denture; in what he knew to abe misled or contaminated. That off-the-rec- perhaps always even that he want- ord information sometimes be useful frequency aed lower On the denture. is illustrated with which denture — strength hypotheses, properly appellate judges themselves seek argument. could have concluded that at oral formation

Case Details

Case Name: Zedekiah Suggs v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jan 8, 1969

Citation: 407 F.2d 1272

Docket Number: 20463_1

Court Abbreviation: D.C. Cir.