# Petition for Writ of Certiorari — Burke v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0926%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 395 U.S. 919 ## Text 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 : sie eo { . * ! ‘ . i « : ‘ P F . | ‘ | ; : 7 | 2 a . . | | ‘ : . ™ ; : . ~ ' 4 ; ; « : : ° ‘ ~ : ; ; F . ig ‘ : ; : : ; ; ; - _ ; : . * ‘ : . . ‘ ”~ ba ; J : ; ~~ . - - ”- ? i | : | ; } . ‘ , > . | : . ® E : » . ) “o 4 a . F : “tA i | . » - | i Pg : ; : . . ‘ 2 ; . ° 3 . * : : P . : ; fe : iS - * “ ots iy z age ¢ ; ’ ; : ONG a | i a taal i ii aii te tall . TN TOR re a4 nS 4 ls a ia he a al a i ae : i " IX.. _ 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 Py | 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). -.) :) \t Fey stew nal Ya ve ay 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) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0926%3A1. Public record. Not legal advice.