Petition for Writ of Certiorari — Burke v. United States

SUPREME COURT. US | MAR 27 1959 F

|

BNP AVIS CLERK

; | - | | IN THE

| 7 Supreme Court of the United States

OCTOBER TERM, 1968

(1207

NO.

| e

JIMMIE DANE BURKE

Petitioner

VERSUS

UNITED STATES OF AMERICA

. Respondent

On Petition For A Writ Of Certiorari_

To United, States Court of Appeals

a | . Fifth Circuit

ee eee hs

John N/Gallaspy

- 327 Memphis St.

. Bogalusa, La. 70427

Counsel for Petitioner

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INDEX

PAGE

PION, oisso coke cds enses's errr

QUESTIONS PRESENTED ........ eT eT 2

OPINION BELOW ..... Ne eee eeececeesceseenes

STATUTES INVOLVED .........sec00%- er

‘REASONS FOR GRANTING THE WRIT ....:...5

TI ore ererse ss cerrest 12

CHIREMMIA ED siceeevnenccesees “ee eecedoues 13

APPENDIX (A)

Opinion of thé United States Court

of Appeals for the Fifth Circuit

dated September 23, 1968..........----+++++ 14

APPENDIX (B)

Judgment of Court of Appeals dated

September 23, 1968 .....5.......2eceeeeeee 18

APPENDIX (C)

Order denying rehearing dated jesana! rea

SS rr Tree eee ee ee ee. ae

APPENDIX (D)

(Title 18, U.S.C.A., Section 111)..........5...20-

APPENDIX (E)

(Title 18, U.S CA. Section setae Peer rcs T 21

. CITATIONS ..... an ada lsaeuss ee

AK, vale

XIV'CASES

1. Bennett v. United States, 285

F.2d (567) (Sth Cir. 1960) ......---+++++ 16

2. Chiaravolloti v. United States, 7

60 F. 2d 192 (7th Cir., 1932) ....... ni as 5

3. Mitchell v. United States, 394

- F.2d 767 (1968) ..... See Seas ee 5

4. Morrissetts v. United States, ,

342 U.S. 246, 72 Sup. Ct.

Reporter 240 (1952) ......--- oe ae tuts 5

. 5. Pipes v. United States, 399 F. 2d

471 (Sth Cir., 1968) 2... -.0-- 2222+ ee ae dS

6. “Sparks v, United States, 90 F.2d |

61 (6th Cir., 1937) .. 0... eee eee eee eee ss

7: Title 28, U.S.C.A., Section 1254 ...... ene

, 8. Title 18, U.S.C.A.; Section | ioe cea

9. Title 18, U.S.C.A., Section 1114 .........-. 2

10. Title 18, U.S.C.A. Section 3231 .......-.--4

il. United Statés v. Lombardozzi, oe ee

335 F.2d. 414 (2d Cir.) ..........-00: \ 16

12. United States v. Wallace, 368 y

F.2d 537 (4th Cir., 0966) ......----- pee

13. Walker v. United States,93 F.2d i

) 798 th Cir. BIGEE . 6. oe cet e eee 5

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1

a

IN THE

SUPREME COURT OF THE UNITED STATES

NO.

JIMMIE DANE BURKE: a \

. VERSUS |

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

ee

REFERENCE TO OFFICIAL AND. UNOFFICIAL REPORT

OF THE OPINIONS areas IN THE =" BELOW:

The only written opinion in ‘the Courts below was the .

_ opinion of the United States Court of Appeals for the Fifth

Circuit dated September 23, 1968. Since re-hearing has beet

denied less than 30 days prior to the filing of this petition for

Writ of Certiorari, it does not appear that the opinion of the

Court of Appeals has been published or Officially reported,

except in-the printed copy of opinion provided by the Court of

Appeals under Docket No. 24957. A copy of this opinion is

included herein as — (A).

STATEMENT OF THE GROUNDS OF WHICH

_ THE JURISDICTION OF THIS COURT

IS INVOKED re

The opinion of the Fifth Circuit Court of Appeals’ is dated

September 23, 1968, and re -hearing was denied on February 26,

1969.

seal anit dou) “i

(

is a

The jurisdiction of this Court is invoked under the

provisions of Rule 19 of the United States Supreme Court and

Title 28, U.S.C.A., Section 1254, providing in part:

“Cases in the court of appeals»may ‘be reviewed by the

Supreme Court by the following methods: re e

—_ (1) By writ of certiorari granted upon the petition of any

party to any civil or criminal case, before or after rendition

_of judgment or decree;” — es

QUESTION PRESENTED FOR REVIEW

The sole question involved here is whether a conviction for

the violation of 18 U.S.C.A., Section 111, involving an alleged -

assault upon a Federal officer, requires knowledge on the part

_ of the accused of the federal identity of the victim.

A

a

Expressed in the terms and circumstances of this case, the ,

sole issue here is whether the trial court was correct in charging

the jury that it was not necessary that Jimmie Dane Burke have

knowledge that this was a federal officer in order for Burke to

be guilty of violating the statute (18 U.S.C.A. 111) making it a

crime to commit an assault upon a federal officer. es

STATUTES INVOLVED

1. Title 18, U.S.C.A., Section 111

2. Title 18, U-S.C.A. Section 1114

+ (See appendix (4) and (e). -.)

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3

STATEMENT OF THE CASE

MAY IT PLEASE THE COURT: 7 co

This is a criminal prosecution, resulting from an alleged

violation of U.S.C.A. 18:111.

The’ action arises out of an incident which occurred in

Bogalusa, Louisiana on April 9, 1965, when. it is charged that:

“JIMMIE: DANE BURKE did forceably assault, resist,

oppose, impede, intimidate and interfere with ROBERT

LOUIS WERTMAN, an officer of the Federal Breau of

Investigation of the Department of Justice, while the said

ROBERT LOUIS WERTMAN , was engaged jh the

-performiance ofghis official. duties; in violation of Title 18,

United States Code, Section 111.”

A Grand Jury indictment was returned, containing the

above charge, and on May 5, 1965 a plea of not guilty was

entered. On May 2, 1966, the trial began, and on May 3, 1966,

after the ‘jury informed the Court that it was hopelessly

deadlocked, a mis-trial was ordered, Subsequently, on

September 19,1966, the case wes again brought up for trial, and

on September 20, 1966 the jury returned a verdict of guilty as

charged. On January 17, 1967, sentence was pronounced, and

the defendant was committed to the custody of the Attorney

General for imprisonment for a. period of one year, with the

Court recommending early parole. A notice of appeal on behalf

of the défendant was filed January 18, 1967, and the appeal

was subsequently perfected in the United States Court of

Appeals for the Fifth Circuit. -

By opinion dated September 23, 1968, the Court of

Appeals affirmed the District Court. Re-hearing was applied fdr,

4

' and denied February 26, 1969. A stay: of mandate was obtained

through and including March 28, 1969.

Regarding the factual background of the case, it appears

that Special Agent Wertman of the F.B.I. was in the process of

. observing and photographing activities in the City of Bogalusa, ”

Louisiana on April 9, 1965. A disturbance took place involving

the defendant and some news photographers who had persisted —

in taking the defendant’s picture. Agent Wertman proceeded to

adjust his camera, focusing.it upon the defendant. There are

some conflicts in the testimony as to what took place

thereafter. Agent Wertman recalled someone saying “don’t take

my picture”. (Page 34 of Multilith record). Burke apparently

jumped or ran toward Agent Wertman. Here again there is

conflict in the testimony, with Agent Wertman and Agent Sass

testifying that someone shouted “he’s an F.B.I. agent”, but at

least one other officer, Trooper John Short, did not hear any

such warning (Page 78). Agent Wertman at the time of this

incident had no ‘dentification visible to the public; he had on a

business suit, without any badge (Page 40-41). Burke struck at

Wertman or Wertman’s camera, and according to Wertman, hit

him.

The Court instructed the jury that the law does not require .

that the defendant have knowledge that the person who is

assaulted is a-Federal Officer. A charge conference was held by

the Court, during which this phase of the law was explored in |

detail, and, relying upon recent Court of Appeals decisions, the

Court charged that knowledge is not essential, to. which, of

- course, defendant’s counsel objected. This sole legal issue

* permeated the entire trial, and it is the sole question at issue

here. |

Title 18, U.S.C.A., Section 3231 provides the basis for

| Federal jurisdiction in the Court of First Instance.

.

~ a ae

5

ARGUMENT

MAY IT PLEASE THE COURT:

The decision.of the Court of Appeals is in conflict with the

decisions of other Courts of Appeals on the same question. —

Also, this decision involves an important question of Federal

law which has not been, but should be settled by the United

States Supreme Court. Additionally, it is respectfully submitted

that the decjsion of the Court «* Appeals is in conflict with the

principle stated by this Court in the case of Morissette v. United

States, 342 U.S. 246, 72 Supreme Court Reporter 240 (1952).

As pointed out by the United States Court of Appeals for

the District of Columbia Circuit, in Mitchell v. United States,

304 F. 2d 767 (1968): : | :

“Although several courts have held that knowledge of the

victim’s federal employment is an element of a section 1 11

offense, there is a discernible trend of decisions to the

contrary” (394 F. 2d 767, 772)

| In footnote, the Court in the Mitchell case pointed out the

following decisions as being . among those holding that

‘knowledge is an element:

“Walker v. United States, 93 F. 2d 792 (8th Cir. 1938);

‘ Sparks v. United States, 90 F. 2d 61 (6th Cir. 1937); .

Chiaravalloti v. United States, 60 F. 2d 192 (7th Cir.

1932)” S

The following decisions are among those to the contrary:

“United States v. Wallace, 368 F. 2d 537 (4th Cir., 1966),

cert. denied 386 U.S. 976, 87 S. Ct. 1169, 18 L. Ed. 2d

6

136 (1967); United States v. Lombardozzi, 335 F. 2d 414

_, (2d Cir.), cert. denied, 379 U.S. 914, 85 S. Ct. 261,13 L.

- Ed. 2d 185 (1964); Bennett v. United States, 285 F. 2d

567 (5th Cr. 1960), cert. denied, 366 U.S. 911, 81S. Ct.

1087, 6 L. Ed. 2d 236 (1961)” :

The Mitchell case involved the offense ot stealing property

belonging to the District of Columbia, but the Court went very

thoroughly into the question of Sienter in analogous situations.

The following language, although provided by the Court in

connection with the requirement of knowledge on the charge of

‘stealing, is pertinent to the question involved here: »

“On the other hand, there are-several reasons for arguing

that knowledge of ownership by the District of Columbia

_is a necessary element in a § 22-2206 offense. First, one

may point to the statutory language-specifying “property

of the District of Columbia” and app!y the reasoning of

" the Supreme Court in Morissette v. United States, 342 U.S.

246, 72 S. Ct. 240, 96 L. Ed. 288 (1952):

The spirit of the doctrine which denies to the federal

judiciary power to create crims forthrightly (see United

States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 3

L. Ed. 259; United ‘States v. Gooding, 25 U.S. (12

Wheat.) 460, 6 L. Ed. 693) admonishes that we should

not enlarge the reach of enacted crimes by constituting

_ components contemplated by the words used in the

statute. | i, | 3

342 U.S. at 263, 72'S. Ct. at 249.

hesitant to depart from a literal, reading of a criminal

from anything less than the - incriminating —

(9) This statement suggest that the judiciary should be

7

statute; as there is no strong reason for omitting the

scienter, the statutory language indicates that it is an

element of a \8 22-2206 offense. Second, the penalties

provided for petit larceny and “petit” embezzlement are

"relatively minor. It is quite possible that because of the

greater vulnerability of low-valued government property

‘(street lights,refuse containers, park . benches, office

supplies, etc.),- Congress intended to create a greater

deterrent to this type of theft and embezzlement, and,

therefore, enacted 8 22-2206 with more severe penalties.

Since § 22-2206 would be a greater deterrent only if the

potential wrongdoers were aware that the property they

were intending to steal belonged to the. District of

Columbia, the statute would have its intended effect only |

if construed to require scienter. ”

A very thorough discussion of the judicial hackground of

interpretation of 18:111 appears in Judge Godbold’s dissent in

_ Pipes v. United States, 399 F. 2d 471 (5th Circuit, 1968). As |

pointed out - Judge Godbold:

“Tt misses the mark to say we would be rewriting the

statute. by requiring knowledge and thereby changing its

intent and meaning. Requiring knowledge when the statute

does not so state is exactly what this and many other

_ courts have been, and are doing, for this and numerous

other federal statutes. Further, the congressional intent is

assumed, not demonstrated,” (399 F. 2d 471, 476)

His dissent goes on to outline like senciite in which knowledge

is required although not referred to in the statute.

Going on to MORISSETTE, the defendant there went

upon government property and removed three tons of empty

bomb casings. When arrested and charged with violating 18

‘a ae - Barwon

U.S.C.A. 641, Morrissette maintained that he -thought this . ;

property was abandoned. The Trial Court took the position that ie:

criminal intent was presumed, and charged the jury accordingly.

Morissette. was convicted, and on appeal through the United . |

States Court of Appeals for the 6th Circuit, his conviction was —

sustained. The United States Supreme Court granted

certiorari,and in a thoroughly documented opinion concluded:

“It is alike the general rule of law, in the dictate of natural

justice, that to constitute guilt there must be not only a

wrongful act, but a criminal intention . . .” ¢72 S. Ct. 240,

255) * Sine eas, |

“But knowing conversion requires more than knowledge

that defendant was taking the property into his possession.

He must have had knowledge of the facts, thought not

necessarily. the law, that made the taking a conversion.”

(72S. Ct. 240, 254) ee

_. In exploring the background of the principle of intent, and of

the requirement of knowledge of the facts which make the act

punishable, the Court provided the following history:

“Crime, as a compound concept, generally constituted

only from concurrence of an evil-meaning ‘mind with an

evil-doing hand, was congenial to an intense individualism

and took deep and early root in American soil. As the

states codified the common law of crimes, even if their

enactments were silent on the subject, their courts

assumed that the omission did not signify disapproval of

the principle buy merely recognized that intent was so

inherent in the idea of the offense that it required no

statutory affirmation. Courts, with little hesitation or

- division, found an implication of the requirement as to

offenses that were taken over from the common law. The

ass btn ile icin cS a2 eta LNS tia DR es somene ain wn

unanimity with which they have alti to the central

thought that wrongdoing must be conscious to be criminal |

is emphasized by the variety, disparity and confusion of

their definitions of the requisite but elusive mental

element. However, courts of various jurisdictions, and for

the purposes of difference offenses, have devised working

formulae, if not scientific ones, for the instruction of juries

around such terms as “felonious intent,” “criminal.

intent”, “malice aforethought,” ‘guilty knuwledge,”

ee “fraudulent intent”, “wilfulness,” “scienter,” to denote

guilty knowledge, or “mens rea,” to signify un evil purpose

or mental culpability. By use or combinatjgn of these

' various tokens, they have sought to protect those who

were not blameworthly in mind from conviction of

infamous common-law crimes.” (Emphasis added)

Obviously criminal intention is required. This is unquestioned,

and this essential element was recognized by. the ‘Trial Court in.

the instant case as follows:

“The sciiestaah elements required to be proved in order to

establish the offense charged in the indictment are, first,

the act or acts of forcibly assaulting an agent of the

- Federal Bureau of Investigation while the agent was

engaged in the performance of his official duties as

charged; and secondly, doing such act or acts willfully,

which means with bad oo to disregard the law.”

(Multilith Record, page 129). ? —

However, after charging the jury that the act must be done

‘with bad purposes, to disregard the law”, the Trial Court

negated or contradicted ‘this correct statement of law by

charging the jury, in effect, that knowledge of the facts making .

‘this a crime was not necessary’ in order to find guilt..As shown.

by the preceding quotation from MORISSETTE, criminal intent —

“~

@ is generally analogous to guilty knowledge. The analogous

# nature of these words, or concepts, is further pointed out at 72

%® S. Ct. 250, where the Court noted that Congress “has geen fit to

4 preacribe that an evil state of mind, described variously in one

3? or more terms as “intentional, willful, knowing, fraudulent or

*% maliciou”; will make criminal an otherwise indifferent act or

‘@ increase the degree of the offence or its punishment”.

§ Obviously we must have criminal intent in the instant case in ”

? order to have guilt. If intent is required, then “knowing” or

| knowledge, which is comparable to intent or part of it, is also

7 required, the Trial Court, in requiring that the act be done

willfully, but in going on to eliminate the. requirement that it be-

done with knowledge, is causing it’s charge or instruction to _

contradict itself. ae

In MORISSETTE, the Cqurt discussed what it referred to

as “public’ welfare offenses”, where “penalties commonly are

relatively small, and conviction does no grave damage to an

offender’s reputation” (72 ‘S. Ct. 240, 246). The Court is

careful to point out that the abolition of intent’ is not to be

presumed: : | :

“Consequences- of a general abolition of intent as an

ingredient of serious crimes have aroused the concern of

‘ responsible, and disinterested students of penology. Of

course, they would not justify judicial. disregard of a clear

command to that effect from Congress, but they do |

admonish us to caution in assuming that Congress, without

clea: expression, intends in any instance to do so.”

(Footnote 14, 72 S. Ct. 240, 245)

Continuing, the Court stated:

“The Governinent asks us by a feat of -construction

radically to change the wrights and balances in the scales -

“dU

of justice. "The purpose and obvious effect of doing away

with the requirement of a guilty intent is to ease. the

prosecution’ s path to conviction, to strip the defendant of &

such benefit as he derived at common law from innocence —

of evil purpose, and to circumscribe the freedom —

heretofore allowed juries. Such a manifest impairment of

the immunities of the individual should not be extended to

common-law crimes on judicial initiative.” (72 S. Ct. 240,

sige | |

In the instant case the trial court did just what was 1s prohibited ;

in MORRISSETTE. The following quotation from

MORISSETTE is pertinent:

“As we read the record, this case was tried on the theory f

that even if criminal intent were essential its presence (a)

should be decided by the court (b) as a presumption of —

‘law, apparently conclusive (c) predicated upon the isolated §

act of taking rather than upon all of:the circumstances. In

each of these respects we believe the trial court was in

error.” (72 S. Ct. 240, at page 255)

The Trial Court’s charge was predicated upon the isolated act of

‘ attacking someoneirather than upon all of the circumstances.

Morissette did not know that. this was government

property; he thought it was abandoned; he had no intent to —

steal government property. Burke did not know that this was a §

government agent; he thought this was a private individual who

persisted in taking his picture; he had no intent to assault a

government agent. 3 )

The severe penalty allowed by this statute (18:111) is f

obviously justified only because of the official character and

purposes of the person assaulted or impeded. Without this

¢

i

official character you have an offense which is punishable under

the laws of Louisiana and presumably the laws of every city in

Loyisiana. Therefore, the strenuous penalty imposed by the

Federal Statute should only be applicable where the offender

has knowledge of the facts which constitute this crime. If he has

this mens rea, the intent to violate this law, then the penalty

. provided by the law has meaning and can logically be justified ;

if he-does not have this guilty intent or knowledge, then the

_ penalty is out of all. proportion to the offense. :

‘ “It is submitted that the . Congress would not have

authorized such -a severé penalty without intending that it’s

application would be limited to instances of persons who

knowingly commit the prohibited act.

In conclusion, it is submitted that the question involved

here is ready for review by this Honorable Court. Not only are

there conflicting decisions by the Courts of Appeals, but: we

have a very important question of Federal law which should be

decided by this Court. Summarizing the analogy to

MORISSETTE, if Morissette did not have criminal intent

because of his: lack of knowledge of the facts involved, then

. Burke did not have criminal intent if he had-no knowledge of

the facts involved, and just as this Court required that the jury

be so charged in MORISSETTE, they should have been so

charged in this case. As pointed out by Mr. Justice Jackson in

MORISSETTE, had the jury conVicted on proper instructions

“it would be the end of the matter”. Correspondingly, had they

refused to brand Burke as a criminal, “that too would have been

the end of the matter.”

4 &

YW

13

An. important ani evidently a frequentiy recurring

question is involved here. We respéctfully submit that this Court

should review it.

Respectfully submitted,

7 Delos R. Johnson, Jr.

Attorney at Law ,.

| Franklinton, ponere

(Admitted to practice before

the United States Supreme

. Court)

John N. Gallaspy

Attorney at Law

327 Memphis. Street

Bogalusa, Louisiana |

CERTIFICATE OF SERVICE |

4 hereby certify that copies of the Sonam Petition have

been served’on Harry Connick, Assistant U.S. Attorney,

St. Louis St., New Orleans,La. this- bad of March, 1969.

Delos R. Johnson, Jr.

John N :Gallaspy

314

. APPENDIX A

3 IN THE

UNITED STATES COURT OF APPEALS

“FOR THE FIFTH CIRCUIT

‘NO. 24957

JIMMIE DANE BURKE,

Appellant,

versus

UNITED STATES OF AMERICA,

| Appellee.

Appeal from the United States District Court for the

Eastern District of Louisiana

(September 23, 1968)

Before TUTTLE and DYER, Circuit Judges, and

MEHRTENS, District Judge.

TUTTLE, Circuit Judge: This appeal presents clearly and

concisely the question whether a conviction for the violation of

q 18 U.S.C.A. 8111; comports with the law upon proof that

the accused wilfully assaulted a federal official included within

the definition of Section 111 as being covered by the protection

| of the act, without either allegation or proof that whe

a assaulting the accused knew that his Victim was a federal agent

Tithe 18, U.S.C.A. 111, reads in part:

ibe ‘‘Whoever forcibly assaults, resists, opposes, impedes,

intimidates, or interfers with any pereon 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 imprisioned

not more than three years, or both.

oe

“engaged in or on account of the pertormane of his official

duties. %

This appeal raises. only this point. There is no dispute but

that Jimmie Dane Burke wilfully and intentionally attacked FBI |

Agent Robert L. Wertman, who was photographing incidents of

violence occurring ‘during a civil rights march in Bogalusa,

Louisiana. Although there may have been evidence in this trial

sufficient to have warranted a jury in finding that Burke

actually had knowledge of the identity of Agent Wertman, this

is unimportant because at a charge conference and in the actual

charge to the jury, the trial court stated that such knowledge is

not essential to a conviction, if the jury found that the assault,

defined by the court to require wilfulness and intent, actually

occurred on an agent of the United States while —

engaged i in the perforrhance of his duties.

This case is controlled hy the recent decision of this court

in the case of Pipes v. United States, 5 Cir., F. 2d , ,;(No.

24965,-dec. July 30, 1968). However, in light of a concurring

opinion by Judge Godbold in that case it -may be app be appropriate to

point out that a case based upon Section 1}, as co ed by

this court;.is not submitted to the jury wi em, charge that

the “assault” must be an intentional act wilfully done without

legal excuse. The trial court here carefully charged the j jury in

defining the term “assault”: 2?

, :

‘Any intentional and unlawful threat or attempt to

commit injury upon the person of another, when coupled

with an apparent present ability so to do, and an

intentional display of force such as.to place the victim in

- responsible apprehension of immediate bodily harm

constitutes an assault. An assault may be committed

without actually seeng, © striking, or committing bodily

harm to another.”

* Pou»

©

16

“Any intentional use of force upon the person of

another, which results in unlawful touching of same

constitutes a battery.

“Unlawfully, as used in this instruction, means either

- contrary to law or without legal justification.

“Thus a person who, in fact, has the present ability to .

inflict bodily harm upon another, and wilfully threatens or

attempts to inflict bodily harm upon such person, may be

found guilty of forcibly assaulting such person.

“The essential elements required to be proved in order

to establish the offense charged in the (120) indictment

are, first, the act or acts of forcibly assaulting an agent of

the Federal Bureau of Investigation while the agent was

engaged in the performance of his official duties as

charged; and secondly, doing such act or acts willfully,

which means with bad purposes, to disregard the law.”

This court first announced the rule relied on in Pipes,

supra, in Bennett v. United States, 5 Cir., 1960, 285 F. 2d 567.

The Court of Appeals for the Fourth Circuit is of the same

view, as announced in United States v. Wallace, 4 Cir., 1966,

368 F. 2d 537, as is also the Court of Appeals for the Second

Circuit, which, recognizing a split in the circuits, said in United

States v. Lombardozzi, 2 Cir., 1964, 335 F. 2d 414:

“The reasoning in McNabb [McNabb v. United States, 6

Cir., 1941, 123 F. 2d 848, the case relied upon by us in

Bennett, supra] and Bennett is far more persuasive as to

the proper construction to be placed upon Section 111

than those cases which write the element of scienter into a

statute which does not contain this requirement.” 335 F. °

2d at 416.

ve wr

It should be noted that in Bennett, Pipes and in this case,

the gist of the offense was a “forcible assault” on an officer, an

act which was a common law crime. We do not here deal with"

the nature of the charge that would be required by a court in

‘ order adequately to present to a jury a case in which proof of .

‘the indictment related only to one of the other prohibited acts

- “forcibly resists ... opposes, impedes, intimidates, or interferes

with any person...while engaged in or on account of the

performance of his official duties.” Since it is clear that there

must be a wilful and intentional forcible course of conduct . ;

proven in order to satisfy the requirements of the statute, it

may well be that as to. some of the other forbidden acts it

would be necessary for the court to charge the jury in terms

that would make it essential to show that the accused person

knew of the identity of the government official as such in order

for him to be. guilty .of wilfully violating the statute. For a

discussion of this view, see United States v. Wallace, supra,

where the Court of Appeals for the Fourth Circuit said:

“Insofar as the statute proscribes resistance, opposition,

and intimidation of a federal official or interference with

his performance of his official ‘duties, an intentional and

unlawful invation of the rights of the victims is certainly

contemplated, and the statute does not proscribe

reasonable force employed in a justifiable belief that it is

_ exerted in self-defense. So long as the conduct is intended

as an unlawful interference with a victim, who, in fact,isa — .

federal official engaged in his official duties, the conduct is

within the reach of Secfn 111.”United States v.

Wallace,4 Cir., 368 F.2d 537, at 538. i’

The judgment is AFFIRMED.

18

APPENDIX B’

UNITED STATES COURT OF APPEALS

3 FOR THE FIFTH CIRCUIT »

1 _°. -. October Term, 1967

No. 24957 .

ND. C. Docket No.. CR 29970-D

JIMMIE DANE BURKE, me

| . : Appellant,

versus

UNITED STATES OF AMERICA,

2 sees ee ,Appeiiee.

Appeal from the United States District Court fér the

Eastern District of Louisiana. :

Before TUTTLE and DYER, Circuit Judges,

and MEHRTENS; District Judge. °”

2 | JUDGMENT

: This cause hue on to be hinted on the transcript of the —

\ record from the United States District Court for the Eastern

_ District of Louisiana, and was taken under submission by the

7 Court = the record and briefs on file;

aie Shan i

+

ey

,

Wh OANA ‘1 Ata Di i BR Coil

3 -

QN CONSIDERATION WHEREOF, It is now here ordered

and adjudged by this Court that the judgment of the said

_ District Court in this cause be, and the same is hereby affirmed.

September 23, 1968

Issued as Mandate: Oct. 30, 1968

s

dE he wini ae cab nip aS Ci 9 sebastian wed Pini 5P Vick

19

APPENDIX C foes .

[952] (1967 Docket)-Tuttle :

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 24,957 )

‘ JIMMIE DANE BURKE, -

re - Appellant, .

: Vv.

UNITED STATES OF AMERICA,

3 . Appellee.

_ Appeal from the United States District Court for:

ee the Eastern District of Louisiana

(FEBRUARY 26, 1969)

ON PETITION FOR REHEARING

at ~~

Before TUTTLE and DYER, Circuit Judges,

and MEHRTENS, District Judge.

PER CURIAM:

It is ORDERED that the petition for rehearing filed in the

above styled and numbered cause be, and the same is, hereby

DENIED. | tates

-*

20

APPENDIX D

The two statutes which this case oe are set out on

this page and the following page.

TITLE 18, UNITED STATES CODE ANNOTATED

§ 171 Assaulting, resisting, or impeding certain officers or

employees.

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

$5,000.00 or .mprisoned not more than‘three years, or beth.

‘Whoever, in the commission of any such acts uses a deadly

or dangerous weapon, shal! be fined not more than $10,000 or

imprisoned not more than ten years, or both. |

(Found in Volume 18, United States Code Annotated, at

page 11)

21

- APPENDIX E

$ 1114 Protection of officers and employees of the United

States.

Whoever kills any judge of the United States, any United

States Attorney, any Assistant United States Attorney, or any

United States marshal or deputy marshal or person employed to

assist such marshal or deputy marshal, any officer or employee

oi the Federal Bureau of Investigation of the Department of

Justice, any post-office inspector, any officer or employee of

the secret service or of the Bureau of Narcotics, any officer or

enlisted man of the Coast Guard, any officer or employee of

any United States penal or correctional institution, any officer,

employee or agent of the customs or of the intern’l revenue or

_ any person assisting him in the execution of his duties, any

immigration officer, any officer or employee of the Department

_of Agriculture or of the Department of the Interior designated

by the Secretary of Agriculture of the Secretary of the Interior

to enforce any Act-of Congress for the protection, preservation,

or restoration of game and other wild birds. and animals, any

employee of the Department of Agriculture designated by the

Secretary of Agriculture to carry out any law or regulation, or

to perform any function in connection with any Federal or

State program or any program of Puerto Rico, Guam, the Virgin

- Islands of the United States, or the District of Columbia, for the.

control or eradication or prevention of the introduction or

dissemination of animal diseases, arly officer or em aga of ~

National Park Service, any officer or employee of, or assigned

to duty inthe field service of the Bureau of Land Management,

any employee of the Bureau of Animal Industry of the

Department of Agriculture, or any officer or employee of the

Indian field service of the United States, or any officer or

employee of the National Agronautics and Space

Administration directed‘ to guard and protect property of the

? ir ike Nags

Pe ees, FithN ABO Moi tsi

22

United States under the administration and control of the

National Aeronautics and Space Administration, any security

officer of the Department of State or the Foreign Service, or

any officer. or employee of the Department of Health,

Education, and Welfare designated by the Secretary of Health,~

Education and Welfare to conduct investigations or inspections

under the Federal Food, Drug, and Cosmetic Act while engaged

in the performance ‘of his official duties, or on account of the

performance of. his official duties, shall be punished as provided

under sections I}11 and 1112 of this title. June 25, 1948, c.

645, 62 Stat. 756; May .24, 1949, c. 139, #24, 63 Stat. 93; Oct.

31, 1951, c. 655 828, 65 Stat. 721; June 27, 1952, c. 477,

Title IV. #402(c), 66 Stat. 276; July 29, 1958, Pub. L. 85-568,

Title III, 6304(d), 72 Stat. 434y July 2, 1962, Pub. L. 87-518,

3 10, 76 Stat. 132; Aug. 27, 1964, Pub. L. 88-493, &3, 78

Stat. 610; July 15, 1965, Pub. L. 89-74, 8 8(b), 79 Stat. 234.

- (Found in Volume 18, United States Code a, at

page 37)