Petition for Writ of Certiorari — Alan Howell Parrot, Petitioner v. United States

No. ___________

.

__________________

ALAN HOWELL PARROT,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_________________________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_________________________________________

PETITION FOR WRIT OF CERTIORARI

_________________________________________

Walter F. McKee

Counsel of Record

(Bar Number 228425)

MCKEE MORGAN, LLC, P.A.

133 State Street

Augusta, ME 04330

(207) 620-8294

wmckee@mckeemorgan.com

Twenty-second day of October, MMXXV

United States Commercial Printing Company • www.uscpc.us • (202) 866-8558

i

I. QUESTIONS PRESENTED

In an Assault on an Officer prosecution brought

pursuant to 18 U.S.C. § 111, is a mistake of fact jury

instruction warranted by virtue of United States v.

Feola where an accused is aware of the identity of

federal law enforcement officers but where federal

law enforcement officers fail to identify their purpose,

misrepresent their purpose, attempt to enter a

domicile without announcing their purpose, and the

accused uses force to prevent an entry into the

accused’s domicile?

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II. TABLE OF CONTENTS

OPINIONS BELOW ..........……………………………. 1

JURISDICTIONAL STATEMENT ..........…………... 1

STATEMENT OF CASE ..........………………………. 1

ARGUMENT IN SUPPORT OF GRANTING

PETITION FOR WRIT OF CERTIORARI ............... 4

CONCLUSION ........…………………….……………. 12

Appendix

Appendix A

Opinion, United States Court of Appeals

for the First Circuit, United States v.

Alan Howell Parrot,

No. 24-1563 (Mar. 21, 2025) ...................... App-1

Appendix B

Order [Rehearing Denied], United States

Court of Appeals for the First Circuit,

United States v. Alan Howell Parrot,

No. 24-1563 (June 5, 2025) ...................... App-10

Appendix C

District Court’s Order ......................……. App-12

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III. TABLE OF AUTHORITIES

Cases

Crawford-El v. Britton,

523 U.S. 574 (1998) ……………….................….… 12

Hagen v. Utah,

510 U.S. 399 (1994) ……………….................…..... 12

Matthews v. United States,

485 U.S. 58 (1988) ……………….................…......... 5

Saenz v. Roe,

526 U.S. 489 (1999) ……………….................….… 12

United States v. Ettinger,

344 F.3d 1149 (11th Cir. 2003) ………………......... 8

United States v. Evans,

74 F.4th 597 (4th Cir. 2023) ……………….............. 7

United States v. Feola,

420 U.S. 671 (1975) ……………......... 2, 4, 5, 7, 9, 12

United States v. Goodwin,

440 F.2d 1152 (3rd Cir. 1971) ………...................... 9

United States v. Hillsman,

522 F.2d 454 (7th Cir. 1975) ………….................... 6

iv

United States v. Quarrell,

310 F.3d 664 (10th Cir. 2002) ………...................… 8

United States v. Young,

464 F.2d 160 (5th Cir. 1972) …………................... 10

Statutes

18 U.S.C. § 111 …………………………............ 2, 4, 7-8

18 U.S.C. § 1855 ……………………………….........…. 7

18 U.S.C. § 3109 ……………………………….......…. 11

28 U.S.C. § 1254 …….....……………………….........… 1

IV. OPINIONS BELOW

The opinion of the United States Court of

Appeals for the First Circuit was issued on March 21,

2025, and is reported at 133 F.4th 46.

A Petition for Panel Rehearing was filed by

Appellant, and an Order denying that Petition for

Hearing was issued by the First Circuit on June 5,

2025, is unreported but available in Court of Appeals

Docket # 24-1563.

V. JURISDICTIONAL STATEMENT

The United States Court of Appeals for the

First Circuit issued its decision on March 21, 2025. A

timely Petition for Panel Rehearing was filed by Mr.

Parrot, and it was denied by the First Circuit on

June 5, 2025. This timely Petition followed, and this

Court has jurisdiction pursuant to 28 U.S.C. §

1254(1).

VI. STATEMENT OF CASE

On June 22, 2023, Alan Howell Parrot

(“Parrot”) was at his home in Hancock County,

Maine, when he was confronted in the early morning

hours by three special agents with the Federal

Bureau of Investigation (“FBI”). Parrot knew that

these three individuals were federal law enforcement

officers. He was told by these FBI agents that they

were having an “unofficial conversation.” He was

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also told by these FBI agents that they were not

there to serve him with any “legal paperwork.”

This conversation went on for approximately

an hour and a half and covered all sorts of topics—

none of which involved an official reason for the FBI

agents’ presence, let alone that their true purpose in

being there was to execute a search warrant. In fact,

the FBI agents materially misrepresented their

purpose in engaging Parrot, and moments after

telling Parrot specifically that they were not there to

serve “legal paperwork,” Parrot attempted to end the

conversation and directed them to his lawyer.

Despite this, and with Parrot still unaware of any

warrant or lawful authority to enter his home, the

FBI agents forced their way into his home, applied

some degree of physical force on Parrot. Parrot

responded to what he perceived to be an unlawful

entry by pushing an FBI agent with the flat of his

foot. All of this occurred without announcing the

existence of a search warrant.

As a result, Parrot was arrested and charged

with the felony crime of Assault on an Officer

pursuant to 18 U.S.C. § 111.

A one-day jury trial was held on November 28,

2023, at the United States District Court in Bangor,

Maine. At the outset of the trial, Parrot requested

that the District Court instruct the jury on a mistake

of fact instruction that was based on this Court’s

decision in United States v. Feola, 420 U.S. 671, 686

(1975). The District Court declined to issue this

mistake of fact instruction, explaining that it would

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be “improper, because, as we discussed this morning

and previously, Section 111, as other circuits have

recognized, is a general intent crime.”

Following the close of evidence and closing

arguments of counsel, the jury was instructed and

retired to deliberate. They came back to the District

Court, asking if “an FBI agent or agents have the

lawful right to enter the home when they have a

warrant but have not announced that to defendant.”

Still, they were not given the benefit of the mistake

of fact instruction Parrot had sought. The jury went

back to deliberate and came back deadlocked.

However, after an Allen charge, the jury found

Parrot guilty of Assault on an Officer, and he was

later sentenced to two years of probation.

Parrot appealed the District Court’s decision

not to instruct the jury on mistake of fact. After

briefing and oral argument, the United States Court

of Appeals for the First Circuit held that Parrot’s

proposed instruction was not “substantively correct”

because it did not “refer[] to circumstances where a

defendant has made a significant and ‘honest

mistake of fact.’” Accordingly, it affirmed the District

Court’s ruling.

A Petition for Panel Rehearing was then

requested by Parrot, where he (again) conceded that

Section 111 is a general intent crime and that the

proposed instruction the First Circuit relied upon

was not “substantively correct.” However, as

articulated in his Petition, the proposed instruction

relied upon by the First Circuit was not Parrot’s

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proposed mistake of fact instruction, but the

proposed instruction on intent as an element of the

crime. For this reason, Parrot requested the First

Circuit panel to reconsider its decision by applying

his proposed mistake of fact instruction, not the

other proposed instruction that did not relate to

mistake of fact and Feola.

The First Circuit summarily denied his

Petition for Panel Rehearing on June 5, 2025, and

this timely Petition for a Writ of Certiorari followed.

VII. ARGUMENT IN SUPPORT OF GRANTING

PETITION FOR WRIT OF CERTIORARI

18 U.S.C. § 111 prohibits individuals from

assaulting federal law enforcement officers;

Congress’s legislative purpose of this criminal

statute is to provide maximum protection to federal

law enforcement officers. These propositions are

undisputed for purposes of this Petition, and they are

not the subject of any divergence among the United

States Circuit Courts of Appeal.

But that is not what the present case is about.

This is a case where Parrot was not permitted to

bring to bear his most compelling argument to the

jury.

It has long been held that a defendant in a

criminal trial is entitled to a jury instruction on any

recognized defenses for which there exists evidence

sufficient for a reasonable jury to find in his favor,

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such as the mistake of fact defense. Matthews v.

United States, 485 U.S. 58, 63 (1988). A trial court’s

failure to do so raises serious constitutional concerns

about a defendant’s right to a fair trial – especially

when the basis for declining such an instruction is

inconsistent with this Court’s jurisprudence.

In this case, Parrot was not allowed to argue

that his honest mistake of fact about a federal law

enforcement officer’s purpose in entering his home

and applying physical force against him negated any

mens rea with regard to his subsequent conduct. The

United States District Court for the District of Maine

refused to instruct the jury on this mistake of fact

instruction, which was premised on this Court’s

ruling in United States v. Feola, and it critically

hampered his ability to defend himself at trial. The

District Court’s explanation for denying this jury

instruction was simply that section 111 is a general

intent crime. But, again, that is not what this case –

or Parrot’s jury instruction – was based on.

This Court’s decision in United States v. Feola

explained that, although Section 111 is a general

intent crime:

We are not to be understood as implying

that the defendant’s state of knowledge

is never a relevant consideration under

§ 111. The statute does require a

criminal intent, and there may well be

circumstances in which ignorance of the

official status of the person assaulted or

resisted negates the very existence of

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mens rea. For example, where an officer

fails to identify himself or his purpose,

his conduct in certain circumstances

might reasonably be interpreted as the

unlawful use of force directed either at

the defendant or his property.

420 U.S. 671, 686 (1975) (emphasis added). It is

worth noting that, similarly, the First Circuit’s

decision in this case prudently recognized that

“[t]here may be situations in which a person’s lack of

knowledge about facts in the world makes a

conviction under § 111 improper – even where the

assailant is aware that his victim is a federal officer.”

Parrot submits that this Court was careful in

its use of the above block-quoted language; it is not

merely dicta—as the Government argued in the

proceedings below—and it is not unavailable to an

accused simply because he is charged with a general

intent crime.

Other circuits have allowed defendants to

present this mistake of fact defense in similar cases.

In United States v. Hillsman, the United

States Court of Appeals for the Seventh Circuit, like

other courts in subsequent cases, held that “[i]f the

defendant made an honest mistake of fact with

respect to the agent’s status and the defendant’s use

of force would have been justified against a private

citizen, then he cannot be held criminally liable

under § 111.” United States v. Hillsman, 522 F.2d

454, 460 (7th Cir. 1975). To hold otherwise, the

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Seventh Circuit noted, would “create a situation

where legitimate conduct becomes unlawful solely

because of the identity of the individual or agency

effect.” Id. (quotation marks omitted). The Seventh

Circuit referred to this mistake of fact defense as “a

Feola mistaken-belief defense.” See id. at 463.

Further, in United States v. Evans, 74 F.4th

597 (4th Cir. 2023), the United States Court of

Appeals for the Fourth Circuit considered a case

involving a defendant starting a fire on land that,

unknown to the defendant, was owned by the

government. The defendant asserted consistently

that he did not know this and was acting under a

good-faith belief that he was acting on family land

with authority from the owner. The Fourth Circuit

vacated the conviction, holding that although the

Government did not need to prove that the defendant

knew he was on federal land under 18 U.S.C. § 1855,

the Government still needed to prove that the

defendant acted willfully, and a defendant was

permitted to attempt to demonstrate that an honest

mistake of fact negates that intent. See id. at 609. In

so deciding, the Fourth Circuit relied on Feola and

referred to Section 111:

A mistake-of-fact defense may negate

criminal intent even though the

Government need not prove any mens

rea regarding the federal-ownership

element. The Supreme Court reached a

similar conclusion in Feola. There, the

Court held that to obtain a conviction

for assault of a federal officer under 18

8

U.S.C. § 111, the Government did not

have to prove the defendant knew the

assault victim was federally employed.

Nevertheless, the Court kept open the

possibility that a defendant’s mistake

concerning the victim’s identity could be

a defense to criminal liability. For

example, “where an officer fails to

identify himself or his purpose, his

conduct in certain circumstances might

reasonably be interpreted as the

unlawful use of force directed either at

the defendant or his property.” In that

situation, the defendant “might be

justified

in”

resisting,

and

the

defendant’s “honest mistake of fact”

concerning the officer’s identity “would

not be consistent with criminal intent.”

As here, the lack of a scienter

component

within

the

statute’s

jurisdictional element did not foreclose

a defendant from using a factual

mistake regarding the same knowledge

as a defense to the statute’s general

intent requirement.

Id. at 608 (emphasis added) (internal citations

omitted); see also United States v. Ettinger, 344 F.3d

1149, 1157 (11th Cir. 2003) (distinguishing between

criminal intent that was “knowing and willful”

versus actions that were the “result of an honest

mistake of fact or justified resistance that would not

be consistent with criminal intent.”); United States v.

Quarrell, 310 F.3d 664, 675-676 (10th Cir. 2002).

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This Court, in footnote 19 of Feola, cited with

approval to earlier cases in the Third and Fifth

Circuits that are instructive:

First, in United States v. Goodwin, 440 F.2d

1152 (3rd Cir. 1971), the United States Court of

Appeals for the Third Circuit held that proof of

scienter is not required in order to obtain a

conviction under Section 111. Id. at 1156. But the

Third Circuit similarly explained:

In holding that specific knowledge of the victim’s

status as a federal officer is not an essential element

of the crimes enumerated in Section 111, we do not

mean to indicate that a defendant is precluded from

showing that his use of force was defensible and

justified. Since the statute does not encompass those

types of ‘public welfare offenses’ that have abolished

the requirement of mens rea, a mistake of fact that

negates the existence of the necessary criminal

intent will constitute a defense. Thus, a defendant

may cast a reasonable doubt upon the existence of

mens rea by showing that, under the circumstances,

he reasonably believed the facts to be other than they

were and that his actions would have been innocent

had his belief been correct. In order to sustain its

overall burden of proof, the Government must, of

course, remove this doubt by offering rebuttal

evidence to disprove the mistake.

Any distinction between those acts

which would be criminal regardless of

the victim’s identity and those which

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would not is nothing more than the

recognition that a mistake of fact may

negate the existence of mens rea in

some situations and not in others. One

who commits [a]n unprovoked assault,

for example, cannot claim he lacked

criminal intent simply because he did

not know that his victim was a law

enforcement officer. If he acts in

resistance to an arrest, on the other

hand, he may justifiably use reasonable

force in self-defense if he neither knows

nor should know that he is being

arrested and reasonably believes that

he is being subjected to a hostile attack

against his person.

Id. (footnote and internal citations omitted).

Second, in United States v. Young, 464 F.2d

160 (5th Cir. 1972), the United States Court of

Appeals for the Fifth Circuit vacated a conviction

because the trial court improperly instructed the jury

that it was immaterial whether Young knew that the

victims were federal agents or not. See id. The Fifth

Circuit explained that:

When there is no doubt of the

defendant’s

unlawful

intention,

knowledge of the official capacity of the

victim is invariably unnecessary; the

assailant takes his victim as he finds

him. But if the defendant asserts a lack

of intention or wilfulness based upon

11

ignorance of the identity of the victim

and ignorance of the victim’s official

privilege

to

interfere

with

the

defendant’s person or freedom of

movement, the jury must be allowed to

consider the defendant’s evidence

tending to show that he was ignorant of

the official capacity of the victim. For

only then can the jury give fair

consideration to whether the “assault”

was “an intentional act wilfully done

without legal excuse.

Id. at 163 (emphasis added).

In the present case, it is undisputed that the

three FBI agents identified their capacity as federal

law enforcement officers, but they then proceeded to

engage in a conversation with Parrot on topics

unrelated to the search warrant and specifically told

Parrot multiple times that they did not have any

“legal paperwork” to serve him. At all times prior to

the incident that resulted in Parrot being charged

with violating Section 111, Parrot only knew that

there were three special agents with the FBI on his

property, that they were having an unofficial

conversation with him, and that they were not there

to serve legal paperwork, and that they tried to enter

him home without properly informing him of their

authority to do so. See 18 U.S.C. § 3109 (“The officer

may break open any outer or inner door or window of

a house, or any part of a house, or anything therein,

to execute a search warrant, if, after notice of his

12

authority

and

purpose,

he

admittance . . . .” (emphasis added)).

is

refused

Notwithstanding this, Parrot was not

permitted by the District Court to present his Feola

based mistake of fact instruction in this prosecution

under Section 111.

This Petition presents an opportunity for this

Court to solidify its decision in Feola to ensure that

trial courts do not continue to conflate general intent

statutes with an accused’s right to present their

mistake of fact defense, when the instruction is

generated, of course. Saenz v. Roe, 526 U.S. 489, 498

(1999) (“Although the decision of the Court of

Appeals is consistent with the views of other federal

courts that have addressed the issue, we granted

certiorari because of the importance of the case.”);

Crawford-El v. Britton, 523 U.S. 574, 584 (1998)

(granting certiorari due to the importance of the

underlying issues presented in the case and

“[d]espite the relative unimportance of the facts of

this particular case.”); Hagen v. Utah, 510 U.S. 399

(1994) (granting certiorari “to resolve the continuing

confusion over the existence and scope of the § 10(b)

aiding and abetting action.”).

VIII. CONCLUSION

For the foregoing reasons, this Petition for a

Writ of Certiorari should be granted.

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Respectfully submitted,

Walter F. McKee

(Bar No. 228425)

Counsel of Record

MCKEE MORGAN, LLC, P.A.

133 State Street

Augusta, ME 04330

(207) 620-8294

wmckee@mckeemorgan.com

Dated: October 22, 2025