Petition — Snyder v. United States

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| Pare Om 88,

FER 22 1077

| MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

No. 76-1164

Term, 1977

JEFFREY PETER SNYDER,

Petitioner,

US.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

VINCENT C. MUROVICH,

Attorney for Petitioner,

Jeffrey Peter Snyder,

i103 Smithfield Street,

Pittsburgh, Pennsylvania 15222,

412-281-7222.

_——— ——-—

-—-— oS

— err

——__

BATAVIA TIMES, APPELLATE COURT PRINTERS -e-

EDWARD W. SHANNON, SENIOR REPRESENTATIVE

HAROL DL. BERKOBEN, REPR* SENTATIVE

170! PARKLINE OF PITTSBURGH, PA. 18227

412-861-7463

INDEX TO BRIEF.

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OEE GE TUUTIEEIIIOD 0 ccc cedccccccscccsccscccces

Sy Id ck debWecddndndbicecccccscesess

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Reasons for Granting the Writ......................

1. The Court erred in instructing the jury, as to

all four counts of the indictment, that it was im-

material whether or not the petitioner had

knowledge, at the time the federal agents presented

themselves before him, that such persons were of-

ficers of the United States .................505-

2. The Court erred in failing to dismiss Count

Four of the indictment, when the Government’s evi-

dence as to Count Four did not prove beyond a

reasonable doubt that appellant violated Section

1501 of Title 18, United States Code, but merely

demonstrated that petitioner fled from certain

BD Cn 0 bck ee debececebecdeddcccucdosess

3. The Court erred in failing to dismiss Counts

Two and Three of the indictment or in refusing to

render directed verdicts in favor of petitioner

where both counts involved conduct of the

petitioner constituting a single act or transaction

upon which petitioner’s conviction for the First

Count of the indictment rested, in violation of

petitioner’s Fifth Amendment right to be protected

ee ED na vecccsvcvccteneeséceces

Dd s dcendan een

II.

Page

Appendix:

Judgment Order Dated January 11, 1977........... 12

Judgment Order Dated January 24, 1977........... 14

TABLE OF CITATIONS.

Cases:

District of Columbia vs. Little, 339 U.S. 1, 70 S.Ct. 468, 94

ey SEE 6 acucbedectsocaans MAseedassebens 8

Long vs. U.S., 199 F.2d 717 (C.A. 4, 1952) .......... 8,10

Miller vs. U.S., 230 F.2d 486 (C.A. 5, 1956).......... 8

Pettibone vs. U.S., 13 S.Ct. 542, 148 U.S. 197, 37 L.Ed.

EE 6.04.40 sWkedthn need etnned Ceennsnecuecs 5

Sparks vs. U.S., 90 F.2d 61 (C.A. 6, 1937) ........... 5

U.S. vs. Cunningham, 509 F.2d 961 (C.A.D.C., 1975).. 8

U.S. vs. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d

Pe Gs bdbich hha nnandesceins Ginn eetdedcehck. 6,7

U.S. vs. Glover, 321 F.Supp. 591 (E.D. Ark. 1970).... 8

U.S. vs. Goodwin, 440 F.2d 1152 (C.A. 3, 1971)...... 6,7

U.S. vs. Johnson, 462 F.2d 423 (C.A. 3, 1972) ....5,6,10,11

U.S. vs. Mallah, 503 F.2d 971 (C.A.N.Y., 1974) ...... 10

U.S. vs. One Dodge Sedan, 113 F.2d 552 (C.A. 3, 1940) 9

U.S. vs. Perkins, 488 F.2d 652 (C.A. 1, 1973) ........ 6

U.S. vs. Rybicki, 403 F.2d 599 (C.A. 6, 1968) ........ 5

Statutes:

i i ka ia ie a is de 3,6,7,8,9,10

FE ee Ey ee mee 6

ee ad ccc keeeunnaseus 2,3,4,5,6, 7,8, 10

ee ck ccd ois cecutdbeeaseasabed 3,5,9,10

Be a nec cnbeccedednapesdececssacansiata 4

Miscellaneous:

44 A.L.R.24 1018........ Sa Ren oa Re OR Ee

67 C.J.S. 52

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i

IN THE

Supreme Court of the United States

No. ..... Term, 1977

JEFFREY PETER SNYDER,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

Petitioner prays that a Writ of Certiorari issue to review the

judgment of the United States Court of Appeals for the Third

Circuit.

Opinions Below

The decision of the Court of Appeals is not yet reported. It

is set out in the Appendix, infra, at pages 12-15. There was

no written opinion given in the District Court. The Third Cir-

cuit Court of Appeal Judgment Order dated January 11, 1977,

affirming the District Court’s judgment and its Order dated

January 24, 1977, denying a reargument and reaffirming the

District Court’s judgment.

Statement of Jurisdiction

28 U.S.C.A. 1254(1) confers jurisdiction on this Court.

Jurisdiction is further based on United States Court of Ap-

2

peals for the Third Circuit has“. . . decided an important

question of federal law which has not been, but should be,

settled by this court. . .”

Questions Presented

1. Whether the Court erred in instructing the jury, as to

all four counts of the indictment, that it was immaterial

whether or not the petitioner had knowledge, at the time the

federal agents presented themselves before him, that such

persons were officers of the United States.

2. Whether the Court erred in failing to dismiss Count

Four of the indictment, when the Government’s evidence as to

Count Four did not prove beyond a reasonable doubt that

petitioner violated Section 1501 of Title 18, United States

Code, but merely demonstrated that petitioner fled from cer-

tain federal agents.

3. Whether the Court erred in failing to dismiss Counts

Two and Three of the indictment, or in refusing to render

directed verdicts in favor of petitioner, where both counts in-

volved conduct of the petitioner constituting a single act or

transaction upon which petitioner’s conviction for the First

Count of the indictment rested, in violation of petitioner's

Fifth Amendment right to be protected from double

jeopardy.

Statement of the Case

Petitioner, Jeffrey Peter Snyder, was charged in a four

count indictment with forcibly assaulting an officer of the

United States, forcibly resisting, opposing, impeding, in-

timidating and interfering with an officer of the United

States, using force and threats of force to intimidate and im-

pede officers of the Internal Revenue Service, and knowingly

3

and willfully obstructing, resisting, or opposing officers of

the United States while the officers were attempting to

execute a warrant of arrest, in violation of Sections 111 and

1501 of Title 18 and of Section 7212 (a) of Title 26, United

States Code. Petitioner’s motions to dismiss counts 2, 3, and 4

of the indictment, and motions for directed verdicts as to

counts 2 and 3 were denied. Petitioner was found guilty on all

four counts, and was sentenced. Petitioner’s motion for a new

trial was also denied. This appeal is taken from the final sen-

tence entered July 23, 1976.

A summary of the relevant facts shows that on the morning

of April 22, 1976, Jeffrey Snyder responded to two persons

knocking at the door of his residence located at 6521

Darlington Road, Pittsburgh, Pennsylvania. According to

Snyder the individuals did not identify themselves to him in

any manner, and thus he was unaware that the individuals

were agents of the Internal Revenue Service. Snyder went up-

stairs to summon a friend whom Snyder thought was to travel

to school with the two persons who had come to the house.

Snyder’s friend, Keith Miller, went downstairs, and Snyder

followed shortly thereafter and observed one of the in-

dividuals handing a piece of paper to Miller. Snyder as*~"

the two persons to leave the residence, they proceedec o

leave, and Snyder apparently placed his hand on the bac! of

the neck of Special Agent Parks and escorted her to the door

believing these individuals were not privileged to remain on

the premises (Tr. Pg. 7-16, 20-21, 31-32, 43-48, 286-292, 307-

312).

On the evening of April 22, 1976, Snyder was driving by

6521 Darlington Road when he observed three individuals

standing near an automobile parked in front of the residence.

Snyder proceeded in his car farther down the road, and short-

4

ly thereafter, a green automobile stopped next to his and the

federal agents in the car apprehended him. Snyder asserts that

at no time did any one of the three individuals identify him-

self as a federal agent by displaying a badge or by any other

manner (Tr. Pg. 104-114, 131-138, 315-319).

Jurisdiction of the Third Circuit Court of Appeals was in-

voked pursuant to 28 U. S. C. 1291, in that the appeal was

from a final judgment of the District Court for the Western

District of Pennsylvania.

REASONS FOR GRANTING THE WRIT

There are three issues which counsel seeks to assert in the

appeal of this case: (1) that the Court erred in instructing the

jury, as to all four counts of the indictment, that it was im-

material whether or not the petitioner had knowledge, at the

time the federal agents presented themselves before him, that

such persons were officers of the United States; (2) that the

Court erred failing to dismiss Count Four of the indictment,

when the Government’s evidence as to Count Four did not

prove beyond a reasonable doubt that petitioner violated Sec-

tion 1501 of Title 18, United States Code, but merely demon-

strated that petitioner fled from certain federal agents; (3)

that the Court erred in failing to dismiss Counts Two and

Three of the indictment, or in refusing to render directed ver-

dicts in favor of petitioner, where both counts involved con-

duct of the petitioner constituting a single act or transaction

upon which petitioner’s conviction for the First Count of the

indictment rested, in violation of petitioner's Fifth Amend-

ment right to be protected from double jeopardy.

a

5

1. The Court erred in instructing the jury, as to all

four counts of the indictment, that it was immaterial

whether or not the petitioner had knowledge, at the time

the federal agents presented themselves before him, that

such persons were officers of the United States.

The trial judge erroneously stated in his charge to the jury

that as to all four counts in the indictment it was immaterial

whether or not the petitioner had knowledge, at the time the

federal agents presented themselves before him, that such

persons were officers of the United States. It has been a

general rule since Pettibone vs. U. S., 13 S.Ct. 542, 148 U. S.

197, 37 L.Ed 419 (1893) that the prosecution must allege and

prove knowledge on the part of the petitioner that those per-

sons whom he endeavored to improperly influence, in-

timidate or impede were federal officers engaged in the per-

formance of their duties.

With regard to specific sections of the U. S. Code contained

in the several counts of petitioner’s indictment, Title 26

U.S.C. § 7212(a) definitel; requires knowledge of the federal

agents’ identity as an officer as an element of the offense set

forth in that section. U. S. vs. Rybicki, 403 F.2d 599 (C.A. 6,

1968) stated clearly that the district judge’s failure to instruct

the jury that the petitioner, who was charged with obstructing

the administration of internal revenue laws (26 U.S.C.

§ 7212(a)), had to know that men who were seizing his

property were internal revenue agents, was a failure con-

stituting plain error and resulted in the reversal of

petitioner's conviction. This position has been adopted in the

3rd Circuit in U.S. vs. Johnson, 462 F.2d 423 (C.A. 3, 1972) as

to Section 7212(a).

As to count four of the indictment, involving 18 U.S.C.

§ 1501, the case of Sparks vs. United States, 90 F.2d 61 (C.A. 6,

6

1937) held that the statutory predecessor of Section 1501—18

U.S.C. § 245—required that in a trial for resisting an officer

of the United States it must be shown that the person resisted

was an officer, and that the accused was aware of that fact.

While U.S. vs. Johnson, supra, has decided for the 3rd Cir-

cuit that in a prosecution under 18 U.S.C. § 111, (counts 1 and

2 of petitioner’s indictment) specific knowledge of the vic-

tim’s status as a federal officer is not an essential element of

the crime, the cases of U. S. vs. Perkins, 488 F.2d 652, (C.A. 1,

1973), U. S. vs. Goodwin, 440 F.2d 1152 (C.A. 3, 1971), and

even the recent U. S. Supreme Court case of U. S. vs. Feola,

420 U. S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975) suggest

that qualifications ought to be applied to this general

position.

The Feola case concurs with the Johnson decision that in

general, scienter is not an element of this particular statutory

offense, yet the Supreme Court has noted certain exceptional

circumstances where knowledge of the federal agents’ status is

determinative:

“We are not to be understood as implying that the

defendant’s state of knowledge is never a relevant con-

sideration 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 negaies the very existence of mens

rea. For example, where an officer fails to identify him-

self 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

a situation of that kind, one might be justified in exerting

an element of resistance, and an honest mistake of fact

would not be consistent with criminal intent.”

The petitioner, not having been made aware at the time that

the persons inside his residence were in fact federal agents,

7

employed reasonable force to remove them from the

premises.

U.S. vs. Goodwin, supra, follows the Feola position, that in a

Section 111 prosecution the defendant may cast doubt upon

the existence of mens rea by showing that, under the cir-

cumstances, he reasonably believed the facts to be other than

they were and that his actions would have been innocent had

his belief been correct, with the burden on the prosecution to

remove such doubt by offering evidence to disprove the

mistake of fact.

For the foregoing reasons, petitioner submits that the in-

structions to the jury to the effect that knowledge of the status

of the federal agents was immaterial, is erroneous as to all

four counts of the indictment.

2. The Court erred in failing to dismiss Count Four of

the indictment, when the Government’s evidence as to

Count Four did not prove beyond a reasonable doubt that

appellant violated Section 1501 of Title 18, United States

Code, but merely demonstrated that petitioner fled from

certain federal agents.

It is undisputed in the record that on the evening of April

22, 1976, petitioner did not assault, beat or wound any officer

of the United States. Taking the evidence presented in a light

most favorable to the prosecution, it is clear that petitioner

did not obstruct, resist or oppose any officer of the United

States, but on that same evening merely fled in a vehicle from

the federal agents involved. Thus, the prosecution has failed

to prove an essential element of the offense charged in Count

Four of the indictment, that petitioner committed acts

proscribed by Section 1501 of Title 18 of the United States

Code.

In Miller vs. U. S., 230 F.2d 486 (C.A. 5, 1956) it was held in

a prosecution under 18 U.S.C. § 1501 for knowingly and

wilfully obstructing, resisting and opposing a Deputy United

States Marshall in his effort to serve a subpoena on a bank

robbery witness, that where the defendant had harbored the

witness for several days, had denied a deputy’s first request to

be admitted to her home when informed that he had no search

warrant, and had denied the presence of the wanted witness

although the deputy knew her to be lying, the conduct of the

defendant was insufficient to warrant her conviction. The

Miller court stated:

“. . . we are emphatic in our view that certainty in the

nature of criminal offenses forbids . . . the use of this

section [18 U.S.C. § 1501] as a catchall to make crimes

out of actions which law-enforcing agents may feel to be

undesireable, but which Congress has not seen fit to

proscribe.” (page 488).

The case of U.S. vs. Cunningham, 509 F.2d 961 (C.A.D.C..,

1975), while concerned with a related offense (18 U.S.C.

§ 111), describes activities that fall outside the scope of illegal

conduct in dealings with officers of the United States:

“It is clear that all failures to cooperate with federal

agents are within the statute’s prohibition, and that some

measure of presently applied force is required. Threats

of the future use of force are not enough, United States v.

Glover, 321 F.Supp. 591 (E.D.Ark. 1970), nor is mere

deception of a federal agent, Long vs. United States, 199

F.2d 717 (4th Cir. 1952), nor, presumably, would be the

mere refusal to unlock a door through which federal

agents sought entrance. Cf. District of Columbia vs. Little,

339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599 (1950) (construing

District of Columbia regulation outlawing the ‘interfer-

ing with or preventing [of] any inspection’ by a health of-

ficer.”

9

It has been the position of several state courts, including

Pennsylvania's, that no offense of obstructing or interfering

with an officer in the performance of his duty is committed by

the act of a person in running away from an officer who is at-

tempting to arrest that person (67 C.J.S. 52, 44 A.L.R.3d

1018).

3. The Court erred in failing to dismiss Counts Two

and Three of the indictment or in refusing to render

directed verdicts in favor of petitioner where both counts

involved conduct of the petitioner constituting a single

act or transaction upon which petitioner’s conviction for

the First Count of the indictment rested, in violation of

petitioner’s Fifth Amendment right to be protected from

double jeopardy.

Petitioner submits that his trial and conviction on the three

counts concerning the events of the morning of April 22, 1976

(two counts involving 18 U.S.C. § 111, one count involving 26

U.S.C. § 7212 (a)) violates his Fifth Amendment right not to

be placed in jeopardy twice for the same offense. The above

three counts involve the same transaction, and the convictions

on all three counts were based on the same evidence presented

at trial. U.S. vs. One Dodge Sedan, 113 F.2d 552 (C.A. 3,

1940).

Taking the evidence presented in a light most favorable to

the prosecution, the testimony given concerning the events of

the morning of April 22, 1976 (Tr. Pg. 7-16, 20-21, 31-32, 43-

48) shows that at most petitioner on a single occasion applied

physical force to Special Agent Parks by placing his hand on

the back of her neck and escorting her to the door after the

summons had been served by the Special Agents. The record

reveals that petitioner did not forcibly assault Agent Parks at

any other time, nor did he assault any other officer of the

10

United States, did not obstruct or impede these agents by pre-

venting their entrance or exit from the building, nor did in

any other way interfere with their official duties. Thus

petitioner’s convictions on the first three counts in the indict-

ment rest on a single physical act, which act was considered

sufficient proof to return a conviction on each of the three in-

dictments. Offenses are the same for the purposes of double

jeopardy protection when evidence required to support con-

viction upon one of them would have been sufficient to

warrant conviction upon the other. U.S. vs. Mallah, 503 F.2d

971 (C.A. N.Y., 1974).

Vile or obscene language which the evidence shows was em-

ployed by petitioner during this morning incident does not

constitute conduct of a nature serious enough to warrant a

conviction for forcibly assaulting or for forcibly resisting,

opposing, impeding, intimidating or interfering with an of-

ficer of the United States (18 U.S.C. §111), nor does such

language constitute the offense of using force or threats of

force to impede or intimidate any officer acting on behalf of

the Internal Revenue Service (26 U.S.C. § 7217 (a)). The word

“forcibly” as used in Section III refers to the string of verbs

following it and not merely to the first verb “assaults”; ob-

scene language alone has no characteristics of force. Long vs.

U.S., 199 F.2d 717 (C.A. 4, 1952). To convict under any por-

tion of Section III requires proof of an ability to inflict harm,

not merely proof of an interference with the performance of a

duty. U.S. vs. Johnson, 462 F.2d 423 (C.A. 3, 1972).

The Johnson case cited above involves a defendant whose

convictions on two of three counts (identical to the first three

counts brought against appeilant) were affirmed on appeal,

and whose double jeopardy argument was rejected by the

Court of Appeals. The instant appeal is distinguishable,

however, on the basis that Johnson was found to have

<a eas iNet,

11

engaged in two distinct acts that were the separate facts

necessary to sustain multiple convictions. Where Johnson was

shown to have physically assaulted officers of the Internal

Revenue Service and physically obstructed their access to a

building, petitioner was found only to have physically as-

saulted one federal agent. Thus, in the Johnson case separate

and distinct facts were available upon which multiple charges

could be brought and sustained, whereas petitioner’s con-

victions on the first three counts in the indictment improperly

rested upon a single factual episode, violating petitioner’s

Fifth Amendment guarantee against the hazards of double

jeopardy.

Conclusion

WHEREFORE, Snyder respectfully requests the Court to

reverse the judgment of conviction and to dismiss the indict-

ment, or in the alternative to remand the case to the District

Court for a new trial.

Respectfully submitted,

VINCENT C. MUROVICH,

Attorney for the Petitioner—

Jeffrey Peter Snyder.

12

APPENDIX

Judgment Order Dated January 11, 1977

UNITED STATES COURT OF APPEALS

For the Third Circuit

No. 76-2005

UNITED STATES OF AMERICA,

v

JEFFREY PETER SNYDER,

Appellant.

(D. C. Crim. No. 76-95)

Appeal From the United States District Court for the

Western District of Pennsylvania

Submitted Under Third Circuit Rule 12(6)

January 10, 1977

Before GIBBONS and GARTH, Circuit Judges,

and COHEN’, District Judge.

Larry P. Gaitens, Esquire, Lucchino, Gaitens & Hough,

Suite 1204, Lawyers Building, Pittsburgh, Pennsylvania

15219, Attorney for Appellant.

Blair A. Griffith, United States Attorney, John Paul

Garhart, Asst. United States Attorney, 633 U.S. Post Office &

Courthouse, Pittsburgh, Pennsylvania 15219, Attorneys for

Appellee.

* Mitchell H. Cohen, United States District Judge for the District of New

Jersey, sitting by designation.

13

Appendix—Judgment Order Dated January 11, 1977.

In this appeal from a judgment of sentence for violations of

18 U.S.C. $111, 18 U.S.C. § 1501 and 26 U.S.C. § 7212 (a) ap-

pellant contends

(1) that the court should have charged the jury that

knowiedge that the victim is a federal officer is required

for a conviction under 18 U.S.C. $111.

(2) that the court failed to charge the scienter re-

quired for conviction under 18 U.S.C. § 1501 and 26

U.S.C. §7212(a).'

(3) that the verdict is not supported by the evidence.

(4) that counts two and three of the indictment in-

volve a single act or transaction and thus violates the

double jeopardy provision of the Fifth Amendment.

We find each of these contentions to be without merit.

It is ORDERED and ADJUDGED that the judgment of the

district court is affirmed. No costs.

By the Court,

JOHN J. GIBBONS,

Circuit Judge.

Attest

THOMAS F. QUINN,

Clerk.

Dated: Jan 11 1977

The appellant has not furnished a transcript of the court's charge to the

jury, and has not replied to the Government's representation, brief p. 10,

that a charge in conformance with United States v. Rybicki, 403 F.2d 599 (6th

Cir. 1968) and Sparks v. United States, 90 F.2d 61 (7th Cir. 1937), was in fact

given.

14

Appendix—Judgment Order Dated January 24, 1977.

Judgment Order Dated January 24, 1977

UNITED STATES COURT OF APPEALS

15

Appendix—Judgment Order Dated January 24, 1977.

In this appeal from a judgment of sentence for violations of

18 U.S.C. § 111, 18 U.S.C. § 1501 and 26 U.S.C. § 7212(a) ap-

pellant contends:

For the Third Circuit

No. 76-2005

UNITED STATES OF AMERICA,

v

JEFFREY PETER SNYDER,

Appellant.

(D. C. Crim. No. 76-95).

Appeal From the United States District Court for the

Western District of Pennsylvania

Submitted Under Third Circuit Rule 12(6)

January 24, 1977

Before GIBBONS and GARTH, Circuit Judges,

and COHEN’, District Judge.

Larry P. Gaitens, Esquire, Lucchino, Gaitens & Hough,

Suite 1204, Lawyers Building, Pittsburgh, Pennsylvania

15219, Attorney for Appellant.

Blair A. Griffith, United States Attorney, John Paul

Garhart, Asst. United States Attorney, 633 U.S. Post Office &

Courthouse, Pittsburgh, Pennsylvania 15219, Attorneys for

Appellee.

* Mitchell H. Cohen, United States District Judge for the District of New

Jersey, sitting by designation.

(1) that the court should have charged the jury that

knowledge that the victim is a federa! officer is required

for a conviction under 18 U.S.C. §111.

(2) that the court failed to charge the scienter re-

quired for conviction under 18 U.S.C. §1501 and 26

U.S.C. §7212(a).

(3) that the verdict is not supported by the evidence.

(4) that counts two and three of the indictment in-

volve a single act or transaction and thus violates the

double jeopardy provision of the Fifth Amendment.

We find each of these contentions to be without merit.

It is ORDERED and ADJUDGED that the judgment of the

district court is affirmed.

By the Court,

JOHN GIBBONS,

Circuit Judge.

Attest

THOMAS F. QUINN,

Clerk.

Dated: Jan 24 1977