Opposition — Snyder v. United States

PILED

No. 76-1164 JUN 9 1977

MIGHAEL RODAX, JR., @LERK

In the Supreme Court of the United States

OCTOBER TERM, 1976

JEFFREY PETER SNYDER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Wape H. McCree, Jr.,

Solicitor General,

BENJAMIN R, CIVILETTI,

Assistant Attorney General,

JEROME M. FEIT,

SARA CRISCITELLI,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

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CITATIONS

Cases:

Abbate v. United States, 359 U.S. 187 ...............0.. Y

Barnes v. United States, 412 U.S. 837 ....4....0....042. 7

Blockburger v. United States, 284 U.S.

SUM Gatadesienssdidindiaatdeusibibatbabiehideenmenbiiaiaiabiialuiibiediids 9. 10

District of Columbia vy. Little, 339 U.LS.1 o............ &

Gore v. United States, 357 U.S. 386 .............0....24.. Y

lannelli v. United States, 420 U.S. 770 200.000.000.022... y

Miller v. United States, 236 F. 2d 486. .................. x

North Carolina v. Pearce, 395 U.S. TUN wee. y

Re: Charge to Grand Jury, McDonald,

30 F. Cas. 983 (No. 18.250) (C.C. D.

TUNED ’ wisiislenieitudeienticbicniniditeataniampabdaediaiiubtienddnncnneniind 8

United States vy. Cunningham, 509 F. 2d

IE secciepthiebdaclcGladaicaasininaanaeiscalauaasaeaidsiaaiueaidae aicieadamnes af

United States v. Feola, 420 U.S. 671 .....00...0...0000.. 6

Page

Cases—continued:

United States v. Goodwin, 440 F. 2d

alleen 6

United States v. Johnson, 462 F. 2d 423 ............. 10

United States v. Lukins, 26 F. Cas. 1011

CBbep. ED BTRD GL. GA FAD. cccccccsvesoscccesiecccscsccsences x

United States v. McDonald, 26 F. Cas.

1074 (No. 15,667) (C.C. E.D. Wis.) ............eeeeee x

Constitution and statutes:

U.S. Constitution, Fifth Amendment,

Double Jeopardy Clause ..................2:c00++ 2, 8, 10

BF TL BOE ccacnscnccntstctsetinnesvscccsacsennnenssovess passim

FED BET... FEIO cccccdvcsccncscsonceccnsnstusestecseserncsces passim

2B U.S.C. T2UDR) .ccrrccccorcccosocccccscveccesosoosceesees 2, 5, 6

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-1164

JEFFREY PETER SNYDER, PETITIONER

Vv.

UNITED STATES ©. AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The judgment order of the court of appeals (Pet.

App. 14-15) is noted in a table at 547 F. 2d 1165.

JURISDICTION

The judgment of the court of appeals was entered

on January 24, 1977. The petition for a writ of cer-

tiorari was filed on February 22, 1977. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the trial court correctly instructed the

jury concerning the proof required of petitioner's knowl-

edge that he was dealing with federal officials.

(1)

2

2. Whether the evidence was sufficient to sustain peti-

tioner’s conviction under 18 U.S.C. 1501 of obstructing

service of an arrest warrant.

3. Whether petitioner’s conviction on three counts

arising out of the same incident violates the Double

Jeopardy Clause.

STATUTES INVOLVED

18 U.S.C. 111 provides in relevant part:

Whoever forcibly assaults, resists, opposes, impedes,

intimidates, or interferes with any person designated

in section 1114 of this title while engaged in or on

account of the performance of his official duties,

shall be fined not more than $5,000 or imprisoned

not more than three years, or both.

18 U.S.C. 1501 provides in relevant part:

Whoever knowingly and willfully obstructs, resists,

or opposes any officer of the United States, or other

person duly authorized, in serving, or attempting to

serve or execute, any legal or judicial writ or process

of any court of the United States, or United States

magistrate * * * [s]hall, except as otherwise provid-

ed by law, be fined not more than $300 or impri-

soned not more than one year, or both.

26 U.S.C. 7212(a) provides in relevant part:

Whoever corruptly or by force or threats of

force (including any threatening letter or communica-

tion) endeavors to intimidate or impede any officer

or employee of the United States acting in an official

capacity under this title, or in any other way cor-

ruptly or by force or threats of force (including

any threatening letter or communication) obstructs

_

—

3

or impedes, or endeavors to obstruct or impede,

the due administration of this title, shall, upon con-

viction thereof, be fined * * * or imprisoned * * * .

The term “threats of force”, as used in this sub-

section, means threats of bodily harm to the officer

or employee of the United States or to a member of

his family.

STATEMENT

On April 22, 1976, Internal Revenue Service (IRS)

agents Deborah Parks and Allen Rawls went to the

residence of Keith Miller in order to serve him with a

civil summons requiring him to appear to give testimony

(Tr. 8-9). Petitioner answered the door, admitted the

agents into the house, and left the room (Tr. 9-10).

Miller soon appeared, and Agent Parks displayed her

credentials to him, identified herself and Agent Rawls

as IRS employees, and served the summons. While

Agent Parks was explaining the summons, petitioner re-

turned to the room, and Miller told him, “Clyde, they

have a summons for me.” At that point, petitioner

grabbed the summons from Miller's hand and ordered the

agents to “Get out of this God damned house * * *

You people from the * * * Internal Revenue Service have

no reason to be here” (Tr. 11). Petitioner then grabbed

Agent Rawls’ lapel and shoved the summons into his

pocket. He put his hand on the back of Agent Parks’

neck, applying pressure, and forcibly pushed her out of

the door (Tr. 12, 45-46). Petitioner then took the sum-

mons, which Agent Rawls had in the meantime removed

from his pocket and left on a table, crumpled it up,

and threw it out the door after them, shouting “Don't

you come back here again, you black fucker” (Tr.

46).

4

That afternoon, Charles R. Nagy, a criminal investiga-

tor with the Internal Revenue Service, obtained a war-

rant for petitioner's arrest for assaulting a federal of-

ficer (Tr. 62, 66). He and several other IRS inspectors

(Tr. 67) proceeded to the Miller residence in official

cars bearing government license plates and marked “U.S.

Government Vehicle, Interagency Motor Pool” on the side.

At about 7:00 p.m. petitioner approached the house in

an automobile, but, seeing the agents standing outside,

he sped off (Tr. 106-108). Two of the agents pursued him

at a high speed and attempted unsuccessfully to stop

him by placing their vehicle across petitioner's path (Tr.

110-111). The agents finally pulled alongside petitioner's

car as he stopped at an intersection for a red light; one

agent got out of his car, showed his credentials to

petitioner, identified himself as a federal officer, and

ordered petitioner to get out of his car (Tr. 113). When

the light turned green, however, petitioner drove off (Tr.

114). He was apprehended later that night at the Mil-

ler residence (Tr. 76-80).!

At trial, petitioner denied the assault on Agent Parks

and the intimidating acts against her and Agent Rawls

(Tr. 312). He also testified that, when he drove past the

house on the evening of the assault, he was on his way

to the bank and suddenly found himself being chased

by another car; he stated that while stopped at a traf-

fic light he was approached and threatened by one of

the men in the car, who sprayed him and his passenger

with mace (Tr. 317).

'The petition sets forth petitioner's version of the facts (Pet.

3-4) and omits the evidence tending to contradict his version. On

review of a conviction, of course, the evidence must be considered

in the light most favorable to the prosecution.

5

Following a jury trial in the United States District

Court for the Western District of Pennsylvania, petitioner

was convicted on all four counts charged: Count I,

forcible assault of a federal official (Agent Parks), in

violation of 18 U.S.C. 111; Count 2, forcibly resisting,

opposing, impeding, intimidating, and interfering with

federal officials (both agents), in violation of the same

statute, 18 U.S.C. 111; Count 3, endeavoring to intimidate

and impede, by force or threats of force, officers of

the Internal Revenue Service, in violation of 26 U.S.C.

7212(a); and Count 4, knowingly and willfully obstructing,

resisting, and opposing federal officers attempting to exe-

cute a warrant for his arrest, in violation of 18 U.S.C.

1501 (Pet. 2-3).2 The first three counts arose from events

of the morning of April 22, 1976, while the fourth

count arose from the chase of petitioner by IRS investi-

gators that evening.

Petitioner was sentenced to concurrent terms of 179

days’ imprisonment on the first and fourth counts to be

followed by concurrent three-year terms on the second

and third counts. The three-year terms for Counts 2 and

3 were suspended, and petitioner was placed on probation

on those two counts.

ARGUMENT

1. Petitioner contends (Pet. 5-7) that the trial court

incorrectly instructed the jury that it was immaterial as

to all four counts whether petitioner knew, at the time

federal agents presented themselves, that the agents were

officers of the United States.

2A copy of the indictment in this case has been lodged with

the Clerk of this Court.

6

(a) Petitioner simply misreads the record as to the

jury instructions concerning Counts 3 and 4, which charged

violations of 18 U.S.C. 1501 and 26 U.S.C. 7212(a).

The trial court expressly advised the jury that, in order

to have violated 26 U.S.C. 7212{a), petitioner must have

known that the agents “were Internal Revenue Agents,

and that they were acting in their official capacity.

* ** This statute specifically sets up an additional of-

fense which requires proof beyond a reasonable doubt

that they knew they were Internal Revenue Service

servants and agents” (Sup. Tr. 20, 23).3 A similar in-

struction, to the effect that petitioner must have known

that the agents “were engaged in the performance of

their official duties,” was given concerning the elements

of 18 U.S.C. 1501 (see Sup. Tr. 24, 26).

(b) As to the instruction concerning 18 U.S.C. II],

this Court has held that Section I11 does not “embod[y]

an unexpressed requirement that an assailant be aware

that his victim is a federal officer.” The statute re-

quires only an intent to assault. United States v. Feola,

420 U.S. 671, 684. The instruction given by the trial

court correctly stated this principle (Sup. Tr. 17-18, 19).

Petitioner, however, points to language in Feol/a and in

an earlier Third Circuit case* suggesting that in certain

circumstances a person’s knowledge of the identity of his

victim might be relevant to establishing a violation of 18

U.S.C. 111. Specifically, if there were no indication that

the person against whom force was used was a federal

official, and if use of force against an ordinary citizen

“Sup. Tr.” refers to the supplemental transcript. setting out the

charge of the trial court on June 30, 1976.

4United States v. Goodwin, 440 F. 2d 1152 (C.A. 3).

7

would be lawful in the circumstances, the requisite mens

rea for the offense of assault might be lacking. See

420 U.S. at 686. Petitioner complains that an instruction

setting forth this exception should have been given.

In the circumstances of this case, any error in failing to

give such an instruction was harmless. The jury found

petitioner guilty on Count 3, charging him with impeding

IRS agents knowing that they are federal officials; this

count related to the same incident at the Miller residence

that was the subject of the assault counts. There is

accordingly no possibility that the jury, under different

instructions, would have found that Rawls and Parks were

not IRS agents for purposes of Counts | and 2, relating to 18

U.S.C. 111, as well. Whether mens rea might have been

lacking if petitioner had not known the official status of

Agents Rawls and Parks is therefore an_ entirely

hypothetical question, and irrelevant in this case.

2. Petitioner contends (Pet. 7-9) that the government's

evidence concerning the events of the evening of April 22,

1976, did not prove a violation of 18 U.S.C. 1501 because

petitioner merely fled and therefore did not “obstruct, resist

or oppose” federal officials in their attempt to serve an arrest

warrant on him. Whatever the merit of this contention-

and for the reasons set out below we believe it has none-

petitioner’s sentence on Count 4, to which this contention

applies, was concurrent with his sentence on Count I, to

which it does not apply. There is accordingly no need for this

Court to review this contention. See Barnes v. United

States, 412 U.S. 837, 848 n. 16.

The trial court instructed the jury that it could not find a

violation of the statute if petitioner merely fled. It noted,

however, that flight, together with additional circumstances

8

of resistance such as circumventing a roadblock, could

constitute a violation of the statute (Sup. Tr. 25-26).°

This jury instruction was proper. While the issue has

arisen infrequently, it was long ago held that obstruction of

an officer includes any acts which “hinder, impede, or in any

manner interrupt or prevent” the service or execution of

process and “does not necessarily imply the employment of

direct force.” United States v. McDonald, 26 F. Cas. 1074,

1077 (No. 15,667) (C.C. E.D. Wis.); Re: Charge to Grand

Jury, McDonald, 30 F. Cas. 983 (No. 18,250) (C.C. D.

Mass.); see also District of Columbia v. Little, 339 U.S. 1,6

and n. 6. Indeed, it has been stated that if a person, after

being asked to come with an arresting officer, says he will

not come and does not come, his actions constitute

resistance of the officer within the prohibition of the statute.

United States v. Lukins, 26 F. Cas. 1011 (No. 15, 639)(C.C.

D. Pa.) (Circuit Justice Washington) The government's

evidence in this case showed that petitioner, after being

asked by the officer to get out of his car, refused todo so and

sped off; it also showed that petitioner circumvented a road-

block of a car clearly marked as a government car (Tr. 110-

113). These acts constituted ample evidence from which the

jury could find a violation of 18 U.S.C. 1501.

3. Finally, petitioner attacks (Pet. 9-11) his convic-

tion for three offenses arising out of the events of the

morning of April 22 at the Miller residence as violating

the Double Jeopardy Clause. This claim is without merit.

‘Miller v. United States, 230 F. 2d 486 (C.A. 5), on which petitioner

relies (Pet. &), holds only that a person's retusal to permit officers

without a search warrant to enter his residence does not violate [8

U.S.C. 1501. United States v. Cunningham, 509 F. 2d 961 (C.A. D.C.).

is similarly inapposite; it construes 18 U.S.C. TI1, a statute which

prohibits “forcible” interference with law enforcement officers. an

clement not required to be proved under Section 1501.

9

While it has been suggested that the Double Jeopardy

Clause, in addition to prohibiting multiple trials for the

same offense, also protects against multiple punishment

for a single offense (North Carolina v. Pearce, 395 U.S.

711, 717), it is well settled that the constitutional pro-

vision does not bar joinder at a single trial of offenses

arising out of a single transaction whenever those offenses

survive the “same elements” test of Blockburger v. United

States, 284 U.S. 299. See Gore v. United States, 357

U.S. 386, 392-393; Abbate v. United States, 359 U.S.

187, 198-199 (Brennan, J.). And contrary to petitioner's

contention (Pet. 10), whether two offenses are the same

depends on the statutory elements of the offenses and not

simply upon a congruence of the evidence introduced to

prove the crimes in particular cases. /annelli v. United

States, 420 U.S. 770, 785 n. 17.

In the present case, Counts | and 2 did indeed charge

the same offense—in that both entailed violations of 18

U.S.C. 111. However, although the offenses were roughly

contemporaneous, they did not arise from the same trans-

action. Count | related to the physical battery of Agent

Parks, while Count 2 involved the quite distinct actions

by petitioner intimidating and impeding both agents

through use of obscene and abusive language and threats,

which constituted a show of force in the circumstances

(Sup. Tr. 21-22).

While Count 3, which charged that petitioner endeavor-

ed to intimidate and impede Agents Parks and Rawls by

force or threats of force, knowing them to be IRS of-

ficers, while they were acting in their official capacity,

arguably was established by the same evidence as that

adduced to prove Count 2, the multiple convictions

entailed no error. Petitioner received concurrent sentences

for these two counts, and therefore, even if they were the

10

“same” offense, he was subject neither to the separate

trial nor the multiple punishment that the Double Jeopardy

Clause might be thought to proscribe.°

CONCLUSION

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

WapeE H. McCree, JR.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. Felt,

SARA CRISCITELLI,

Attorneys.

JUNE 1977.

‘These two counts do not, in any event, offend the Blockhurger

test. Only Count 3 requires proof that force or threats of force

were used against the agents with the knowledge that they were

Internal Revenue agents in the performance of their duties under

litle 26. See United States v. Johnson, 462 F. 2d 423, 428 (C.A.

3). Conversely. Count 2 requires proof of present ability to inflict

harm. unlike Count 3. which ts satisfied by proof of threats of

force that interfere with performance of duty (iid).

DOJ-1977-06