Petition for Writ of Certiorari — Abasi Akeem Smith, Petitioner v. United States

Supreme Court briefDec 19, 2018

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ABASI SMITH,

Petitioner,

Versus

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

RACHAEL E. REESE, ESQ.

Counsel of Record

Attorney at Law

O'BRIEN HATFIELD, P.A.

511 West Bay Street

Suite 330

Tampa, Florida 33606

(813) 228-6989

rer@markjobrien.com

QUESTION PRESENTED

Pursuant

to Title 18, United States Code Seetion 111, it is a crime for a

defendant to forcibly assault a federal officer while the officer is engaged in the

performance of his official duties. Title 18, United States Code Section 1114 defines

who an officer and employee of the United States is and when they are protected.

Specifically, Section 1114 defines a federal officer as someone who "is engaged in or

on accow1t of the performance of official duties, or any person assisting such an

officer 01· employee in the pe1formance of such. duties or on account of that

assistance." The question presented is:

Whether a state law enforcement officer, who has also been made a member

of a fede1·al task force, qualifies as a federal agent when he is acting in the sole

capacity of a state law enforcement office1·and performing official duties only as a

state law enforcement officer?

PARTIES TO THE PROCEEDING

All the parties to this proceeding al'e named in the caption.

TABLE OF CONTENTS

QUESTION PRESENTED ..............................................................................

PARTIES TO THE PROCEEDING .................................................

.................. ii

TABLE OF CONTENTS ................................................................................

iii

INDEX TO APPENDICES .............................................................................

.iv

TABLE OF AUTHORITIES ............................................................................

PETITION FOR WRIT OF CERTIORARI. ........................................................

OPINIONS BELOW .......................................................................................

JURISDICTION .....................................

, ..............................

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ....................

STATEMENT OF THE CASE ..........................................................................

,.......................

A. Statementofjurisdiction

in the lower courts, in accordance with

this Court's Rule 14(1)(g)(ii), and suggestion of justification for

consideration, as suggested under Rule 10................................................

B. Factual Background ..............................................................................

C. Procedural History in the District Court ...................................................

D. Eleventh Circuit's Consideration of the Matter .......................

................... 8

REASONS FOR GRANTING THE PETITION ................................................

A The Eleventh Circuit's Opinion Creates a Conflict Amongst

the Appellate Courts on When an Individual Can Be Defined

as a Federal Officer .............................................................................

B. This Case Squarely Presents a Likely Recurring Issue of

Substantial Legal and Practical Importance ............................................

CONCLUSION ..........................................................................................

Ill

INDEX TO APPENDICES

APPENDIX A

APPENDIXB

APPENDIXC

OPINION AND JUDGMENT OF THE UNITED

STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT (07/26/2018) .......................................................

ORDER DENYING MOTION FOR REHEARING OF

THE UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT (9/27/2018) .....................................

JUDGMENT OF THE UNITED STATES DISTRICT

COURT FOR THE MIDDLE DISTRICT OF FLORIDA,

ORLANDO DIVISION, Doc.# 56 (4/26/2017) .......................

TABLE OF AUTHORITIES

CASES

Ladner v. United States, 358 U.S. 169,

79 S.Ct. 209, 3 L.Ed.2d 199 (1958) ........................................................

United States v. Clemons, 32 F.3d 1504 (11th Cir. 1994) .................................

9, 10

United States v. Feola, 420 U.S. 671,

95 S.Ct. 1255, 43 L.Ed.2d 541 (1975) .....................................................

United States v. Heliczer, 373 F.2d 241 (2d Cir. 1967) ........................

................

United States v. Holder, 256 F.3d 959 (10th Cir. 2001) .......................................

United States v. Hoy, 137 F.3d 726 (2d Cir. 1988) ..............................................

United States v. Janis, 810 F.3d 595 (8th Cir. 2016) ...........................................

United States v. Kelley, 850 F.2d 212 (5th Cir. 1988) ..........................................

United States v. Murphy, 35 F.3d 143 (4th Cir. 1994) .. .. .. .... ... .. ......... .. ............... 12

United States v. Schrader, 10 F .3d 1345 (8th Cir. 1993) ...... .. ... .... ..................

.... 14

United States v. Stephenson, 708 F.2d 580 (11th Cir. 1983) ..................................

United States v. Williamson, 482 F.2d 508 (5th Cir. 1973) ...................................

STATUTES

............. .passim

18 U.S.C. § 111 ........................................................................

18 U.S.C. § 1114 .............................................................

.......................

18 U.S.C. § 3231 ................................................................................

passim

............. 2

18 u.s.c.§ 3742 .............................................................................................

25 u.s.c.§ 2804 ...........................................................................

, ........... 13, 14

28 u.s.c. § 564 ..........................................................................

......... . ....... 7, 8

28 U.S.C. § 566 ...........................................................................................

7, 8

28 U.S.C. § 1254 .....................................................................................

....... 1

28 U.S.C. § 1291 ............................................................................................

RULES

Eleventh Circuit Rule 35 .................................................................................

Federal Rule of Appellate Procedure 35 .............................................................

Supreme Court Rule 14 ...............................................................................

... 2

PETITION FOR WRIT OF CERTIORARI

Abas.i Smith respectfully petitions fo1· a writ of certiorari to review the

opinion of the United States Court of Appeals for the Eleventh Circuit entered in

this matter on July 26, 2018, affinning the judgment of the United States Di.strk-t

Court for Middle District of Florida, Orlando Division.

OPINIONS BELOW

The opinion of the United States Cout-t of Appeals for the Eleventh Circuit is

unpublished and appears at United States v. Smith, •· Fed. Appx. •·, 2018 WL

3598631 (11th Cir. 2018). It is al.so attached as Appendix A.

The judgment of the United States Dish':ict CoUl-t for the Middle District of

Florida, Orlando Division, is unpublished and is attached at Appendix C.

JURISDICTION

The cow1; of appeals entered its opinion on July 26, 2018. Pursuant

Federal Rule of Appellate Procedure 35 and 11th Circuit R,tle 35, a timely petition

for rehearing and rehearing en ba,u- was filed on August 15, 2018. Ultimately, the

United States Cotu-t of Appeals fo1· the Eleventh Cu-cuit denied the petition on

September 27, 2018. The jurisdiction of this Court is invoked under 28 U.S.C. §

1254(1).

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

Pursuant to Title 18, United States Code, Section 111, it is a crime to forcibly

assault, resist, oppose, impede, intimidate or interfere with any person designated

in section 1114 while engaged in or on account of the performance of official duties.

Specifically, Section 1114 defines a federal officer as someone who "is engaged in or

on account of the performance of official duties, or any person assisting such an

officer or employee in the performance

of such duties or on account of that

assistance. ''

STATEMENT OF THE CASE

A. Statement of jurisdiction in the lower courts, in accordance with this

Court's Rule 14(1)(g)(ii), and suggestion

of justification

for

consideration, as suggested under Rule 10.

The Petitioner, Abasi Smith, faced federal criminal charges in the district

court under 18 U.S.C. § 3231, which grants exclusive original jurisdiction to district

courts over offenses against the laws of the United States. The district court entered

judgment on April 26, 2017. Mr. Smith filed a timely notice of appeal on April 28,

2017. The Eleventh Circuit exercised jurisdiction over Mr. Smith's appeal under 28

U.S.C. § 1291, which authorizes review of final judgments of the district courts, and

18 U.S.C. § 3742(a), which authorizes review of sentences.

This case concerns an important issue surrounding wh en someone qualifies

as a federal officer. Currently, almost all federal courts of app eal look at the facts on

a case-by-case basis in determining

whether a victim satisfies the definition of a

"federal officer" and whether the victim was fulfilling official duties at the time of

an assault. The courts have consistently held that there is no established brightlines test. However, the intent behind creating the statute was so federal officers

could be protected and also would have a form to have their cases heard in the

unfortunate

circumstances

where they are assaulted

on the job. The Eleventh

Circuit in the instant case decided a case that conflicts with the other federal circuit

courts of appeals and allows for governmental agencies to abuse the power of forum

shopping. This case concerns the question of whether the law, as it currently sits,

violates the rights

of certain

defendants

because governmental

agencies are

bringing charges in improper venues solely because the defendant will get a harsher

punishment.

B. Factual Background.

The government's case against Mr. Smith centered around an incident that

took place while agents were trying to execute a state arrest warrant against Mr.

Smith. The alleged victim in the case, Orange County Sheriffs Office Corporal

Randy Hovland, was also a member of the U.S. Marshals

Florida/Caribbean

Regional Fugitive Task Force. One of the issues in dispute at trial was whether

Corporal Hovland was acting in his capacity as a federal officer at the time of the

alleged offense that Mr. Smith was charged with.

Deputy Ross Moser, with the United States Marshals Service, was tasked

with supervising

the U.S. Marshals

Florida/Caribbean

Regional Fugitive Task

Force. (Doc. 64 at 7). The task force has different participating

the Orange County Sheriffs

agencies, including

Office and the Seminole County Sheriffs

Office.

Members of the task force are deputized as federal officers once they are nominated .

(Doc. 64 at 7). Corporal Randy Hovland was identified as a deputized member of the

task force on March 30, 2016. (Doc. 64 at 8). Corporal Hovland's special deputation

began when he signed the Deputation

Oath of Office (admitted as government's

Exhibit 1) on August 13, 2014 and it was not set to expire until August 31, 2016.

(Doc. 64 at 9). During his trial testimony, Deputy Moser went over the process of

how one becomes a federal fugitive. Deputy Moser also testified about how one

becomes a state fugitive. Specifically, an officer goes and presents

state judge, asks for a warrant,

a judge will sign a warrant,

becomes a fugitive in state court.

evidence to a

and then a person

(Doc. 64 at 13). Deputy Moser was then

questioned about what special deputies, such as Corporal Hovland, are authorized

to do as members

of the task force. Specifically, in government's

specifically

states

that any person that's

authorized

to seek and execute arrest and search warrants

task force under Title 18 authority,

deputized

exhibit 1, it

after signing that

supporting

oath 1s

a federal

which is where all federal crimes are listed

within the United States Code. (Doc. 64 at 14). Deputy Moser admitted that there

are no state charges listed under Title 18. (Doc. 64 at 15). Deputy Moser testified

that the warrant issued for the Appellant, and the reason that law enforcement was

looking for the Appellant, was actually a state warrant out of Seminole County for a

state law violation. The warrant did not have anything to do with a federal statute

or federal law violation. (Doc. 64 at 15).

Seminole County Sheriffs Office Investigator

Michael Nunes was also a

member of the U.S. Marshals Regional Fugitive Task Force. On March 30, 2016, at

approximately 11:15 a.m., Investigator Nunes was acting as a member of the task

force and was looking for Mr. Smith due to an outstanding

warrant in Seminole

County. (Doc. 64 at 18). Pursuant to his trial testimony, Investigator Nunes was

called to the apartment

complex that Mr. Smith and his girlfriend were at.

However, when they showed up, they saw the vehicle in question as well as Mr.

Smith's girlfriend, Ms. Rucker, putting things in the trunk of the vehicle. When the

vehicle left the complex, Investigator Nunes followed the vehicle onto Colonial Drive

because there was someone in the front seat that they could not identify. (Doc. 64 at

19). Once the vehicle entered Colonial Drive, it officially entered Orange County

jurisdiction and left Seminole County jurisdiction. As a result, Investigator Nunes

called Orange County's felony squad to assist. (Doc. 64 at 19) (emphasis added).

Members of the Orange County felony squad are also part-time members of the task

force. (Doc. 64 at 20).

The alleged victim, Corporal Hovland, also testified during his trial on behalf

of the government. (Doc. 64 at 52). Corporal Hovland testified that on March 30,

2016, he was exercising his duties as a member of the Fugitive Task Force by

attempting to locate and contact Mr. Smith, who had a state felony warrant out for

his arrest. Corporal Hovland was parked in the Hertz parking lot, when he saw the

Seminole County van try to block the entrance to Highway 50. Mr. Smith's vehicle

stopped, and Corporal Hovland wanted to turn his car around so he could block Mr.

Smith's vehicle from the rear. (Doc. 64 at 59). However, as he was getting into

position (with the front nose of his vehicle to the back of the suspect vehicle), the

suspect's vehicle went into reverse and struck Corporal Hovland's vehicle on the

passenger

side. (Doc. 64 at 60). The suspect vehicle then pulled forward, but

snagged the front tire of Corporal Hovland's vehicle and pulled it off. (Doc. 64 at 62).

Corporal Hovland testified that he was in fear of serious bodily injury when he was

struck by the vehicle. (Doc. 64 at 64).

On cross-examination,

Corporal Hovland testified that he is authorized, as an

Orange County Sheriffs Officer, to arrest someone on a state warrant, regardless of

whether he was deputized as a U.S. Marshall. (Doc. 64 at 65). Corporal Hovland

admitted that his duties as a special marshal are limited in that he can only seek

and execute arrests and search warrants supporting a federal task force under Title

18. He further admitted that Title 18 refers to federal crimes, not state crimes. (Doc.

64 at 70).

Although trial counsel for Mr. Smith argued that Corporal Hovland was not

acting as a federal officer at the time of the offense, Mr. Smith was ultimately found

guilty .

C. Procedural History in the District Court.

On September 21, 2016, a federal grand jury returned in the Middle District

of Florida, Orlando Division, a one count indictment

charging Mr. Smith with

forcibly assaulting, resisting, opposing, impeding, intimidating

and interfering with

Corporal R.H ., a person designated in Title 18, United States Code, Section 1114,

while he was engaged in and on account of the performance of his official duties,

and in the commission of such act did use a deadly weapon and dangerous weapon,

in violation of 18 U.S.C. § lll(a)(l)

and (b). (Doc. 1 at 3).

On February 6, 2017, Mr. Smith proceeded to trial before the Honorable

Judge Carlos E. Mendoza. Following the government's case-in-chief, trial counsel for

Mr. Smith moved for a judgment of acquittal. In making his argument, counsel

argued that

As it relates to the federal officer, the marshals testified that their

duties are limited.

Your Honor, the marshals indicated that their duties are limited and

that they arise out of federal statute. I've handed the Court 28, U.S.

Code, 564, and 28, United States Code, 566.

564 reads, United States marshals, deputy and other such officers of

the Service may be designated by the Director - and this is the

important part - in executing the laws of the United States within a

State, may exercise the same powers of the sheriff of the State. May

exercise.

So basically what this is saying is that marshals, in exercising laws of

the United States - in executing the laws of the United States, they

are able to arrest and do everything that a sheriff could do in a state.

Again, it's relating to the federal crimes.

And 566, as the marshal testified to, it's the primary purpose and

mission of the United (sic) Marshals to obey, execute, and enforce all

orders of the United States courts, United States Court of Appeals,

Court of International Trade, and the United States Tax Court.

Further on down, in (e)(B), it says the United States Marshals Service

is authorized to investigate such fugitive matters, both within and

outside the United States.

Again, they're referring to federal laws. They're referring to federal

fugitive .

And, also, in 566(e)(D), it states - and I think this is telling. It says to

assist the State and local and other Federal law enforcement agency,

upon the finding and locating and recovering missing children.

So if they wanted to say that the marshals can assist the states in

arresting fugitives under state warrant, they would have put it in

there. They put in assisting the state for missing children. They could

have easily put that in there.

I understand what the government is going to say is that, well, yeah,

and the witnesses testified that it's adopted by the marshal and so

forth.

Well, the law is that they have to be performing an official duty, and

just because they routinely assist the state does not necessarily mean

that they are authorized per statute to do that. That's a different

matter.

As the Court is aware, this is a court of limited jurisdiction. So just

because it's routine for the marshals to assist the state doesn't mean

under the statute that they have the duty or the authority to do that,

because it's clear in 564 and 566 that they do not."

(Doc. 64 at 91-95).

Following the jury's

guilty verdict,

Mr. Smith was sentenced

by the

Honorable Judge Carlos E. Mendoza. Mr. Smith was ultimately sentenced to the

maximum sentence allowable under the law of 240 months imprisonment, ordered

to run consecutive with the 18 month term of imprisonment

imposed in Case

Number 6:08-cr-51-Orl-41TBS. Mr. Smith was further sentenced to a term of three

(3) years supervised release, upon his release from custody.

D. Eleventh Circuit's Consideration of the Matter.

On appeal, a three-judge panel of the Eleventh Circuit held that Mr. Smith

was not entitled to relief because the district court committed no reversible error in

denying Mr. Smith's Motion for Acquittal. Pet. App. A5. The panel first found that

as a matter oflaw, under 18 U.S.C. § 1114, Hovland was a federal officer.

Section 1114 defines federal officers as "any officer or employee of the

United States or of any agency in any branch of the United States

Government ...

while [he] is engaged in or on account of the

performance of official duties, or any person assisting such an officer or

employee in the performance of such duties." We agree with the

district court that members of the U.S. Marshals Fugitive Task force

are federal officers because they are authorized to "investigate ...

fugitive matters within and outside of the United States" and are

directed by the United States Attorney General. 28 U.S.C. § 566. Smith

offers no authority to support his argument that such officers do not

satisfy 18 U.S.C. § 1114's definition; we thus reject it.

Pet. App. AB at n. 3. The panel then found that it was "unpersuaded" by Mr.

Smith's argument that the evidence was insufficient to establish that Hovland was

a federal officer acting in his official capacity.

"There is no bright-line test" to determine whether an officer is

acting within the scope of his or her official duties under the statute.

United States v. Clemons, 32 F.3d 1504, 1507 (11th Cir. 1994). Instead,

the inquiry turns on whether the officer is "acting within the scope of

what he or she is employed to do" or is "engaging in a purely personal

frolic." Id. We have held, for example, that an FBI agent who was

robbed of her purse "on her way to report for work at the FBI" was

engaged in the performance of her official duties. United States v.

Stephenson, 708 F.2d 580, 582 (11th Cir. 1983).

Smith argues that the evidence was insufficient to show that

Hovland was a federal officer because when he apprehended Smith he

was acting in his capacity as a local sheriff, not as a member of the

U.S. Marshals Service. Again, we disagree.

Trial testimony

demonstrated that the U.S. Marshals Fugitive Task Force consists of

local officers, including Hovland, who are authorized by the federal

government to pursue fugitives who have committed serious crimes.

The Task Force adopts warrants-including

state warrants-and

deputizes local officers to execute those warrants. As multiple officers

testified, local officers began pursuing Smith because the Task Force

had adopted the warrant for Smith's arrest. Hovland was deputized as

a U.S. Marshal on the day he pursued Smith, which he did as part of

his Task Force duties. From this evidence, a reasonable jury could find

that Hovland "was acting within the scope of what [he was] employed

to do," and thus was performing his official duties. Clemons, 32 F.3d at

1507.

Pet. App. AS-9.

Mr. Smith moved for a Petition for Rehearing and Rehearing En Banc after

the Eleventh Circuit rendered its decision. However, Mr. Smith's petitions were

ultimately denied. No Judge in regular active service on the Eleventh Circuit panel

requested that the Court be polled on rehearing en bane. Pet. App. Al 7-18.

REASONS FOR GRANTING THE PETITION

A. The Eleventh Circuit's Opinion Creates a Conflict Amongst the

Appellate Courts on When an Individual Can Be Defined as a Federal

Officer.

The Eleventh Circuit's decision in this case creates a conflict over when an

individual can be defined as a federal officer. Pursuant

to Title 18, United States

Code, Section 111, it is a crime to forcibly assault, resist, oppose, impede, intimidate

or interfere with any person designated in section 1114 while engaged in or on

account of the performance of official duties. Specifically, Section 1114 defines a

federal officer as someone who "is engaged in or on account of the performance of

official duties,

or any person assisting

such an officer or employee in the

performance of such duties or on account of that assistance."

The vast majority of appellate circuits have discussed and analyzed when

someone can be classified as a federal officer and therefore can be a victim under §

111. The courts have discussed the fact that there is no "bright line" test to define

who is an officer or to define performance of official duties. Instead, the cases

illustrate the fluidity of "while engaged" and highlight the fact that no court has

defined what "official duties" entails. Instead, the courts look at each case and

analyze it based on the factual circumstances surrounding the assault. Up until the

Eleventh Circuit's opinion in the instant case, the analysis on a case-by-case basis

was satisfactory. However, the Eleventh Circuit's opinion in this case reveals that

the case-by-case analytical approach can lead to errors and abuse of the system.

In the instant case, Mr. Smith argued on appeal that his judgment and

sentence could not stand because the government failed to prove that the alleged

victim in the case was a federal officer performing his duties at the time of the

assault. The Eleventh Circuit's opinion disagreed with Mr. Smith's position and

found that the victim was both a federal officer at the time of the assault and was

performing official duties as said officer at the time. The Eleventh Circuit's opinion

conflicts with opinions in several other circuits, including the Second, Fourth, Fifth,

Eighth and Tenth.

In United States v. Heliczer, 373 F.2d 241 (2d Cir. 1967), the defendant

argued that his arrest was unlawful and as a result, he could not be found guilty of

assaulting federal narcotics agents. Federal Agent Jensen arrested the defendant

and co-defendants without a warrant and on appeal, the defendants argued their

arrest was unlawful because the agent did not have the power to make an arrest

under state law. In relation to the defendant's

argument

that the potentially

unlawful arrest negated the element required for a conviction of assaulting

federal officer, the Court stated that the test is whether the agent is acting within

the scope of what the agent is employed to do. Id . at 245. The Court went on further

and stated that "[i]t cannot be said that an agent who has made an arrest loses his

official capacity if the arrest is subsequently

adjudged to be unlawful." Id. There

was never any dispute that the federal agent was in fact a "federal officer'' .

In United States v. Murphy, 35 F.3d 143 (4th Cir. 1994), the defendant

challenged his conviction on the basis that the alleged victim, a local jailor, was

employed by the State of North Carolina and therefore was not protected under§§

111 and 1114. The facts leading up to the defendant's arrest and indictment started

when the alleged victim was a prisoner at the county jail. The county jail was under

contract with the United States Marshal Service, because the county jail provided

the marshal

service with services relevant to the detention of federal prisoners,

including the defendant. Id. The Court found that the victim was "employed" by a

federal agency when he was acting as a jailor due to the contract and therefore, was

a federal official pursuant to the law. Id. at 145. The Court further found that the

victim was performing his official duties, as an agent of the federal government, at

the time that the defendant assaulted him. Id.

In United States v. Williamson, 482 F.2d 508 (5th Cir. 1973), the defendant

challenged

his conviction under 18 U.S.C. § 111. The charges arose after the

defendant met up with an individual named Glover, who was staying in a motel

room. Id. prior to the meet, when Glover checked into the motel, his room was

placed under surveillance by a detail of "federal and state narcotics agents under

the direction

defendant

of a federal agent." Id. at 511 (emphasis added). Later on, the

ended up striking one of the state agents with his automobile. Id.

Although not in dispute, the Court acknowledged the fact that since the victim "was

acting in cooperation with an under control of federal officers, in effecting an arrest

for violation of the federal drug laws, assault against him was within the coverage

of§ 111." Id. at 512.

In United States v. Janis, 810 F.3d 595 (8th Cir . 2016), the defendant was

charged and convicted of one count of assault of a federal officer after the defendant

struck the victim on the neck, pushed her on the shoulder and attempted to kick

her. Id. at 596. The incident took place on the Pine Ridge Indian Reservation and

the victim was an officer with the OST Department of Public Safety. On appeal, the

defendant argued that he was entitled to relief because the victim was not acting as

a federal officer at the time of the offense. Id. At trial, it went undisputed that the

OST Department

department

of Public Safety operated pursuant

to a contract between the

and the Bureau of Indian Affairs, which under 25 U.S.C. § 2802 has

responsibility over the provision of law enforcement services in Indian country. Id.

On appeal, the Court discussed how this type of agreement is known as a "638

contract." Id. at 597. The Court discussed that when acting under the authority of

this type of agreement, "a person who is not otherwise a Federal employee shall be

considered to be ... an employee of the Department of the Interior only for purposes

of ... section [] 111 ... of Title 18." Id. (citing 25 U.S.C. § 2804(f)). In ultimately

determining that the victim was acting as a federal officer, the Court discussed the

terms of the contract and the duties being performed by the victim.

Through that contract , the Department of Public Safety "agree[d] to

provide for the protection of lives and property for persons visiting or

residing within the ... Pine Ridge Indian Reservation." The

contract *598 required the department to "assist the [BIA], and other

federal, tribal and state law enforcement officials in the investigation

of tribal, state or federal offenses." In return, the BIA agreed to

reimburse the department for the expenses it incurred. These

provisions demonstrate the BIA's responsibility and authority to

enforce both tribal and federal laws on the reservation. Consistent

with the Indian Law Enforcement Reform Act, the contract enlisted a

tribal agency to aid in that enforcement. See 25 U.S.C. § 2804(a).

Because OST public safety officers operated pursuant to this

agreement, the district court correctly concluded that those officers

"are afforded the same protection under 18 U.S.C. § 111 that Congress

has afforded BIA employees," [United States v.J Schrader, 10 F.3d

[1345] at 1350 [8th Cir. 1993].

Id. at 597-98.

In United States v. Holder, 256 F.3d 959 (10th Cir. 2001), the defendant

challenged his conviction on the basis that the victim in his case was not someone

acting out official duties as a federal officer at the time of the offense. In conducting

its analysis, the Court discussed the tests courts have employed in these cases and

how each case is analyzed independently

based on the facts. Id. The court

ultimately found that the victim was assisting a federal officer at the time of the

shooting because the victim had been given a task through his supervisor, who was

a federal officer, and the task was to construct a fence meeting NRCS standards at

government expense. At the time of the assault, the victim was completing the

preliminary flagging for that fence. As a result, the court found that the victim was

acting within the definition of§ 111. Id.

The cited opinions all determined that in order to qualify as a federal officer,

the victim had to be employed by some federal agency at the time of the offense. The

cited opinions also determined

that in order to qualify as a federal officer

performing official duties, the victim had to have been taking part in duties that

were within the scope of what he or she was employed to do. The Eleventh Circuit

made these two findings in the instant case, but unlike the other courts, its decision

did not take into consideration

the surrounding facts as the other circuits have

required.

For example, the Eleventh

Circuit found that the alleged victim in the

instant case was acting as a federal officer because he was a member of the federal

task force, even though he was not acting as a member of said task force at the time

of the assault. Further, assuming that the victim was acting as a federal officer, he

was not executing his official duties at the time of the assault pursuant to 28 U.S.C.

§ 566.1 The Eleventh Circuit's opinion in the instant case creates a clear conflict

with the other appellate courts of this country. The opinion also makes it clear that

because this Court has never determined a "bright-line" test or more rigid rules

surrounding

when someone can be classified as a federal officer, inconsistent

findings can be made as they have been in this case. Only this Court's review can

establish a national rule that eliminates inconsistent views about who meets the

requirements of a federal officer performing official duties.

1 Pursuant to 28 U.S.C. § 566, "[i]t is the primary role and m1ss1on of the

United States Marshals Service to provide for the security and to obey, execute, and

enforce all orders of the United States District Courts, the United States Courts of

Appeals, the Court of International Trade, and the United States Tax Court, as

provided by law." Further, "[e]xcept as otherwise provided by law or Rule of

Procedure, the United States Marshals Service shall execute all lawful writs,

process and orders issued under the authority of the United States, and shall

command all necessary assistance to execute its duties."

B. This Case Squarely Presents a Likely Recurring Issue of Substantial

Legal and Practical Importance.

The term "forum shopping" is the long-recognized practice of litigants having

their legal case heard in the court thought

judgment. If this Court refuses to entertain

most likely to provide a favorable

this case and identify a more rigid set of

rules that can be used to define what a federal officer means, then convictions under

18 U.S.C. § 111 can be abused in order to secure the most favorable judgment. This

was not Congress' intent when it created this statute.

"Congress' purpose in enacting section lll(a)(l)

federal

officers by providing

supplement

the state statutes

a federal

was to protect individual

offense triable

for punishment

in a federal

of such attacks."

forum to

United States v.

Hoy, 137 F.3d 726 (2nd Cir. 1988) (citing United States v. Kelley, 850 F.2d 212, 214

(5th Cir. 1988)(internal citations omitted)). This Court discussed Congress' purpose

in Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958) when it

found a plausible reading of the legislative intent included that "the congressional

aim was to prevent hindrance to the execution of official duty ... and was not to

protect federal officers except as incident to that aim." This Court again addressed

Congress' intent in United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d

541 (1975) when an argument

was made as to whether

required to prove that the defendant

the government

was

knew the victim was a federal officer. In

finding that no additional proof of intent was required, the Court reiterated that the

statute was enacted both to protect federal officers and federal functions and to

provide a federal forum in which to try alleged offenders. Id.

What happened in the instant

case goes directly against what Congress

intended to happen when it created Section 111. In the instant case, Corporal

Hovland was a corporal acting with the Orange County Sheriffs Office. At the time

of alleged assault involving Mr. Smith, Corporal Hovland was serving a state

warrant. Because he was a state officer, he already had a forum to attack the

actions of Mr. Smith in state court. However, because Corporal Hovland was not

only just a state law enforcement officer, but was also a selected member of the

Task Force on certain occasions, the government used its charging power to forum

shop. Which forum would Mr. Smith receive the most punishment: state or federal?

Because the victim was a member of both forums, it provided the perfect situation

for the government to get the most ''bang for their buck." Corporal Hovland was

acting in his capacity as a state officer and not as a member of the Task Force at the

time of the assault. But because there is no bright-line test or rigid set of rules to

determine how a federal officer is defined, Corporal Hovland was able to use the

system to his advantage and Mr. Smith's disadvantage.

This set of circumstances

will continue to take place unless this Court agrees to entertain this case.

This case presents

an ideal opportunity

to resolve this important

and

recurring issue. The issue was squarely presented and thoroughly discussed both at

the district court level and the appellate court level. The issue has been thoroughly

analyzed by numerous federal and state courts. The issue is ripe for review, and

nothing would be gained from delaying review further.

CONCLUSION

For the reasons stated above, the Petitioner respectfully submits that the

petition for a writ of certiorari should be granted.

Respectfully submitted,

Abasi Smith, Petitioner

Date: December 19, 2018