Brief for the United States in Opposition — Burke v. United States

| an the Supreme Court at the United States

OCTOBER TERM, 1968,

No: 1207

Jimmy DANE BURKE, PETITIONER

7,

UNITED STATES OF AMERICA

bd : &

On 1 PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals { is reported at

400 F. 2d 866.

JURISDICTION.

The judgment of the court of appeals was entered

on September 23, 1968. A.petition for rehearing was

“ denied on February 26, 1969. The petition for a writ . |

“of certiorari was filed on March 27, 1969. The juris-

diction of this Court is invoked under 28 U.S.C. 1254

(1).

(1)

LORS Teed Re ete

2.

QUESTION PRESENTED

Whether, in a prosecution for assault on a federal

officer, 18 U.S.C. 111, the government must prove

that the defendant knew the victim was a. federal

officer engaged in the performance of his duties.

STATEMENT |

In the United States District Court. for the Eastern

‘District of Louisiana petitioner was convicted of as-

saulting a federal officer, in violation of 18° U.S.C.

111. On January 17, 1967, he was sentenced to im-

prisonment for one year. The court of appeals af-

firmed: (Pet. App. A, 400 F. 2d 866).

The evidence showed that on the morning of April

9, 1965, a civil rights demonstration march was con-

ducted on Columbia Road in Bogalusa, Louisiana (R.

25). A substantial crowd gathered along the side

walks to observe. the demonstration. “A number of

local and state police were on hand, as were approxi-

mately twenty FBI agents (R. 67). Among the agents

was Robert L. Wertman, who was equipped with a

camera and assigned to take photographs of any in-

cidents which might involve a violation of federal law

(R. 23). At. the intersection of Third Street and

Columbia, Road three men, including petitioner, broke

from the crowd of onlookers and attacked some maga-

zine photographers (R. 59). Agent Wertman, clothed

in ordinary dress, went to the site of the disturbance

and began to take pictures. After petitioner had been

momentarily restrained by local police from assault-

ing the magazine photographers, he rushed toward

re

Y

3

Wertman and attacked him. One blow struck Wert-

man on his shoulder and neck (R. 36-37). Petitioner ‘

was then restrained and arrested by another FBI

agent. There was evidence that someone had shouted

prior to the attack on Wertman that “He’s an F.B.I.

agent” (R. 38-39). Petitioner testified that he heard

no shouting, and did not know Wertman’s federal

status until after his arrest (R. 81-82). The court |

instructed the jury that knowledge of the federal

identity of the victim was not an element of the’ offense

(8. 130).

ARGUMENT ,

Petitioner has demonstrated. no sound reason for

re-examining the recent decisions. in Pipes v. United

States, 399 F. 2d 471 (C/A. 5), certiorari denied,

March 24, 1969 (No. 1327 Mise.,.this Term); Mc-

Ewen v. United States, 390 F. ‘2d 47 (C.A. 9), cer-

tiorari denied, 392 U.S. 940; United States v. Helic-

zer, 373 F. 2d 241 (C.A. 2), certiorari denied, 388

U.S. 917; United States v. Wallace, 368 F. 2d 537

(C.A. 4), certiorari denied, 386 U.S. 976; and United

States v. Montanaro, 362 F. 2d 527 (C.A. 2), cer-

tiorari denied, 385 U.S. 920. See also United States

v. Lombardozzi, 335 F. 2d 414 (C.A. 2), certiorari

denied,*379 ‘U.S. 914; and Bennett v, United States,

285 F. 2d°567 (C.A. 5), certiorari denied, 366 U.S.

911. These cases all agree that in a prosecution under.

18 U.S.C. 111 the government need not prove that

the accused knew the person he assaulted was a fed-

eral agent. In our brief opposing certiorari in Wal-

lace (No. 1023 Misc., O.T. +280) and Montenaro (No.

. 460, O.T. 1966) we set forth the reasons why we

believe that the decisions holding such knowledge not

_an element of the offense correctly construe 18 U.S.C.

111, as amended in 1948. In brief, we showed that

Congress did not use such words as “knowingly” or

“intentionally” to write a requirement of scienter into

the statute, and that Congress “merely sought to pro-

vide a federal forum for the trial of cases involving

various offenses against federal officers in the per-

formance of official duties.” United States v. Lom-

bardozzi, supra, 335 F: 2d at 416. The cases cited by

petitioner holding that knowledge is an element all

preceded the 1948 revision to 18 U.S.C. 111. Follow-

ing the ‘revision, the Fifth Circuit did continue to

hold that scienter was an‘element of the offense, Har-

gett v. United States, 183. F. 2d 859, 864-865; Hall

v. United States, 235 F. 2d 248. However, in its most

recent decisions (Bennett and Pipes, supra, and peti-

tioner’s case) that: court has indicated that it now |

accepts the generally prevailing view that knowledge |

of the federal character of an officer is not a necessary

element of the offense.

5

emer

For the reasons stated, it is sshpeittells submitted

that the petition ~ a writ of certiorari should be

denied.

'_ERWIN N. GRISWOLD,

’ Solicitor General.

WILL WILSON, :

Assistant Attorney General. —

BEATRICE ROSENBERG,

- MERVYN HAMBURG,

Attorneys.

May 1969. |

7

7

I,

5

. c 3

e :

VX OU. S. GOVERNWENT PRINTING OFFICE; 1969 348893 663 . 7 ¥

;

&