Petition for A Writ of Certiorari — Kiraly v. United States

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JT, U, S. ow

In the Supreme Court of the United States 3

-

OCTOBER TERM, 1971

Ww ilarrenee ned

~ . WILLIAM KIRALY,

Petitioner

—-————

a

UNITED STATES OF AMERICA.

Respondent ~ ; jn

PETITION — A WRIT OF CERTIORARI |

To The United States. Court Of Appeals ~

For The Sixth Circuit

ra

GERagd A. MESSERMAN |

Gold? Rotatori, Messerman & Hanna

1100 Investment Plaza

Cleveland, Ohio 44114

Counsel for Petitioner

OPINION BELOW ___ Ad ME Se SE

JURISDICTION Sears aan. caper eee

, QUESTIONS PRESENTED ... Saag E 2

STATUTORY PROVISIONS INVOLVED - es

STATEMENT OF THE CASE |... ae eA 3

Pd

TABLE OF CONTENTS

| REASON S FOR GRANTING THE WRIT | ee

I. The decision idle. holding that the defend-

ant's knowledge of a federal officer's official

‘capacity is. not an essential element of the of- \- ;

_fense defined*by 18 USC § 111, raises a sub-

stantial and recurring question of federal law _ -

whicl has produced conflicting decisions in |

courts of | 6 ipatay and which should be settled

by this Court _ ora a pe Se

II. The scope of judicial 1 discret in admitting,

for impeachment purposes, evidence that a de- -

fendant had been corivicted on criminal charg“

es more than 30 yeats before the time of trial

_ raises a substantial federal question which has

not been resolved by this Court and which has

«5

led to conflicting decisions in courts of app als 13.

Il. The practice of failing to record grand jury pro-

ceedings, sanctioned by the court below, s¢ im- -

pedes compliance w ith decisions of this Court

‘. — establishing the right to production of grand

: jury minutes as ‘to call for an exercise of this

Court's” power of supervision 16

SS %

‘IV. The determination of the courts below that

federal officials who willfully and without legal -

justification refuse to leave. the home of a pri-

vate citizen are still acting in the performance

of their official duties, within the meaning of

18 USC § 111, raises‘an important federal ques-

tion which has led to conflicting results in°

courts of appeals and which has not been re- .

_ solved by this Court ae SMe MORE

Conch yen ne hs

Appendix ;

\

-Order of District Court Denying Notion. to.,Dis- :

miss Indictment (Filed May 6, 1970) 20

" ilteensaniiin Opinion ‘and Order of District

Court. denying Motion for New Trial (Filed -

September 29, 1970) 22

Opinion of the United States Court’ of Appeals

for the Sixth Circuit Affirming Conviction

(Decided and Filed July 14, 1971) 24

Aas

’ ; > - - &

TABLE OF. oe *

Arwood US. United Statés, 134 F.2d 1007 ae

Mee a

: Ronddlow vs. United States, 418 F.2d.42

(5th Cir. 1969), cert. denied; .400

U.S. 967 __. eso ets yeaa Ee ci Niels 14

"Bennett vs. United. States, 285 F.2d 567 7

Be Cir. 1960), cert. denied, 366

Carter vs. United States, 231 F.2d 232.

(5th Cir. 1956), cert. meeesitas 301

U S..984° es SRE OTE ee ORES Seino Sire: Ao 9

Cook vs. United States, 117 F. = 374

NN

—— Dennis Us. United States, 384 US. $. 885 ey 16, 17

Foster vs. United States, 296 F.2d 65 .

(5th Cir. 1962) oT ae

Gordon vs, United States, 383 F. 24936

(D.C. Cir. 1967) tach eneeomieertn puede tedtihh segieeneicinteanincanesinccinaih ‘14

Hall, ts. United States, 235 F.2d a i :

} (5th Cir. 1956) shel Dele are 9

Hargett vs. United States, 183 F. 2d 859. en

(5th Cir. pc, Re EE

Hodadok vs. United States; 365 F. 72d 679 ee

(8th Cir, 1966) aoe . 19

' Hood vs. United States, 365. F, 24 949 © ——

; ~+(D.C. Cir. 1966) 0

Luck vs. United States, 348 F.2d 763 | :

(D.C. Cir. 1965) : ag

iii

~

a vs. United States, 201 F.2d 749

(4th Cir. 1953) - —

Palmquist vs. United States, 149. F.2d.

352 (5th Cir. 1945), cert.* denied, |

US, 727 :.__.; Reed See ea Te

Pettibone vs. United States, 148-U.S. 197

Pipes vs. United States, 399 F.2d 471,

rehearing denied, 402 F.2d 271 (5th

- Cir. 1968)

Plies ts. United TASS 431 F.2d 727

(9th Cir. 1970).

Portnoy ts. United States, 316 F.2d 486

‘(Ist Cir, 1963), cert. iad 375 U.S

S15 ;

Shorter vs. United States, 412 F.2d 428

‘(9th Cir. 1969), cert. denied, _

U.S _O7 8)

~ Sparks cs. Unite d States, DOF. 2d 61 1 (th

Cir. 1937)

United States vs. Allison. 414 F.2d 407

(9th Cir. 1969), cert. denied, 396

US S. 968

United States vs. Chunn, 347 Fod 717 ;

(4th Cir. 1965 )

United States vs. Ese< shade: 430 F. Dd 14

_ (7th Cir. 1970) ;

United States vs. Gramolini, 301 F. nai

38, 42 (RL. D.C..1969)

United States vs. Cnsatlen 419 F.2d

808 (3rd Cir. 1969 ) Sg SEE Sita i ene eae ay ol ne

10

14

10

14 —

ve nef Sy

1 Se AR UIS PMA POM EG NPIS SLES a

-

l 'nited States vs. Johnson, 412 F. ad 753

et Inited States vs. Rybicki, 4 403 F.2d 599 Be

*

United States vs. Heliczer, 373 F.2d 241 -

(2nd Cir.. 1967), cert. —— 388

U.S. 917 . / é

Uniled States vs. Hildreth, 387 F.2d 328

~ (4th Cir. 1967.)

(Ist Cir. 1969)

Unite od States vs. Kiraly, No. 21047 (6th

Cir. , decided July 14, 1971) |

United States vs. Lombardozzi, 335 F. 2d

414 (2nd Cir. 1964) cert: denied, 379

‘US. 914.

United States vs. Montanaro, 362 F.2d ?

527 (2nd -Cir. 1966) .

United States vs. Polumbo, 401 F. 2d 270

(2Qvd - Cir. 1968)- cert: denied, 394 |

U.S. 947.

_ (6th Cir. 1968) |

United States vs. Scarpllno, 431 F.2d

475 (8th Cir. 1970) ©

UnitedStates vs. Wade, 364 F.2d 931

(6th -Cir. 1966) _

United States vs. Wallace 368 F. 24.537

(4th Cir. 1966) _

| OTHER. AUTHORITIES

—— Scienter as Element of Offense of

Assaulting, Resisting or Impeding a

Federal — 10 ALR wes 1966 )

|

Vv

~ 10,19 *

14

‘14

40

10

10

Vp

In the Sica Court of the United States.

October. Term, 1971

No. :

WILLIAM KIRALY,

Petitioner.

‘vs

« s

UNITED. STATES OF AMERICA,

Respondent

"PETITION FOR A WRIT OF CERTIORARI

To The United States Court Of Appeals

. For The Sixth Circuit’

* Petitioner, William Kiraly, respectfully prays that a

.. writ of certiorari issue to review the judgment and opinion

of the United-States Gourt of Appeals for the Sixth Circuit

entered in this proceeding on July 14,1971. 4

poly?

Opinion Below

The opinion of the Court of Appeals, not yet reported,

appears at the ‘Appendix hereto. Opinions of the district

court denying Petitioner's motion to dismiss the indictment

and motion for new trial, both of which are ‘e uneported,

appear in the Appendix her eto. pa :

Jurisdiction

The judgment of the Court of earn for the Sixth

Circuit was entered on July 14, 1971. This petition for .

certiorari was filed: within thirty days of that date. This

' Court's jurisdiction is invoked under 28 USC § 1254 (1).

: oe 3

Questions Presented ;

(1) Whether allegation and proof that a defendant hac

knowledge of a federal officer's official capacity and of the

fact that the officer was engaged in the performance of

his official duties are essential to indictment and conviction

ona charge of violating 18 USC § TL (Assaulting a Federal

Officer Engaged in the Performance of His Official

Duties )? A a

(2) Where the defehse requests, before a jury has been

empaneled, that the Government be barred from employing

“evidence of a defendant's 30-vear-old convictions to im-

peach the defendant's. credibility. in a case in which the -

deferidant’s testimony is critical to the determination of

the factual issues raised by a criminal charge, is it érror

to deny the defense request without balancing all con-

siderations relevant to the admissibility of the impeaching

* evidence? : | :

_ (3) Where a partitularized ae is Abeasniatiated at

trial for production of the transcript of a witness's grand

jury testimony, but the trial court is rendered powerless

to grant piéduction by reason of the fact that ‘no record

of the witness's grand jury testimony was kept or prepared,

must a timely motion to strike the tr ial t testimony of the

witness be granted?

(4) Where federal officers enter a home without legal

process and solely on the basis of the homeowner's consent,

.are such officers: engaged in the performance of their

official.duties, within the meaning of 18 USC § 111, when’

they fail to respond within a reasonable time to the homeé-

-owner's instruction to leave the premises?

t

STATUTORY PROVISIONS INVOLVED

UNITED STATES Cope, TitLe 158: f

Jill. Assaulting, resisting, or impeding certain offi-

cers or hi ta yees .

>

Whoever forcibly resists, opposes, impedes, in-

timidates, 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. —

Whoever, in the commission of any such acts, uses

a deadly ondangerous weapon, shall be fined.not more

than $10,000 or imprisoned not more than ten years,

or both. :

Unirep States Cope, .Tir_e 28:.-

J 753. - Reporters

Each: district court of the United States, the

United States District Court for the District of the .

Canal Zone, the District Court of Guam, and the

District Court of the Virgin Islands shall appoint one

Or more court reporters. :

mp 2 & 2

(b) One of the reporters appointed for each such

court shall attend at each session of the court and at

every other proceeding designated by rule or order

of the court or by one of the judges, and shall record

verbatim by. shorthand or by mechanical means which

may be augmented by electronic sound recording sub-

ject to regulations promulgatéd by the Judicial Con- -

ferenge: (1) all proceedings in criminal cases had in

open court; (2) all proceedings in other cases had in

open court unless the parties with the approval of the-

judge shall agree-specifically to the contrary; and (3)

such other proceedings as a judge of the court may

’ direct or as may be required by rule.or order of court

‘ or as may be requested by any party to the proceeding. -

The Judicial Conference shall prescribe the types

of electronic sound recording means which may be .

used by the reporters. '

’ STATEMENT OF. THE CASE

In-a two-count indictment filed in-the United States

‘District Court for the Northern District of Ohio, Eastern

Division, Petitioner was ae ged with violations. of 18 USC

§ 111 which allegedly occurred on October 1, 1968. Count

-T of the indictment charged that Petitioner. had assaulted

an agent of the Federal Bureau of Investigation while the

agent was engaged in the performance of his official duties.

Count I alleged an assault upon two agents of the FBI

and ‘further charged that. the assault had been committed —

with a deadly and dangerous weapon.' Neither count of

tlie indictment charged that Petitioner knew that the offi-

cers allegedly assaulted were federal officers, nor did they

allege that he knew the officers were engaged in the per-

forniance of.their ofticial duties. Bf tg ane orem aa

A iotion to dismiss the inca for failure to charge

Rear of these facts was denied, by order filed May 6,

1970, with the following observation: .

Although ‘there are’ cases to the. contrary, the

recent cases which have interpreted and applied 18°

.USC § 111 have held that knowledge or scienter are

not required in order. to. charge a crime under the |

. above statute.”

Trial commenced on June 2, 1970. During the voir.

dire examination of prospective jurors, defense counsel

advised the court that Petitioner had been convicted on

two separate felony charges in 1939 and 1940. He asked

“that the Government be barred from asking Mr. Kiraly

[Petitioner] on cross-examination whether he had previous-

lv been convicted of. the offenses” which had been men-

tioned.* The -Government opposed the request and the

“1. (AL59) ( (AL _ ) refers to the pages of the Appendix filed in the

United States Court of Appeals for the Sixth Circuit. )

“2. (App. 20-21).

(wy)

(Tr. 136) (Cit. 13 ocd herein to designate the transcript

of the voir dire examination of prospective jurors, which tran-

script is separate-from the transcript of ‘the remainder of the |

trial proceedings. )

*

5

court held that “the nature of the prior convictions, con-

sidered in light of the nature of the instant ‘charge for

which the defendant is on trial, are of such nature as to

render evidence of prior convictions relevant to the issue

of the defendant’s credibility, and for that reason the

Court respectfully denies the request of the defense.’

Petitioner subsequently testified at trial that he had been

convicted of breaking and entering in 1939 and armed

robbery ‘in 1940.’ 3 ea, ae

_-—At trial, the: Casa called only two witnesses —

the FBI agents whom: Petitioner had allegedly assaulted

on October 1, 1968, During examination of one of the

FBI agents, defense counsel moved for production of the

grand jury minutes of the witnéss’s testimony.’ Govern-

ment counsel aanounced that he “was informed there

were no minutes taken at the grand jury.”*-The court de-,

clared that the ynavailability of a transcript of the grand

jury proceedings “rendered moot” the request for pro-

duction. Explaining its ruling, the court stated:

In- making such a ruling that the request is moot

because of the unavailability of the grand jury min-

‘utes, I want the récerd to reflect that, 1 feel -it-is the

better policy to have at all grand jury proceedings

a court reporter present and that all testimony of -

witnesses before. the grand jury be recorded so that

in a proper case ,a L request for production can be

granted.

‘Lam mindful, howev er, that there is no statutory

requirement that grand jury proceedings be recorded. .

~ Nonetheless, because the courts have held under prop-

er circumstances that grand jury minutes are subject

°

4. .(Tr. 157) ne 4

5. -(A. 76) |

6. (A.44) - RNs

7. (A. 45)

6

to production, ‘that ina . proper case the pr orn can

‘only be accomplished if a record is kept.*

Defense ‘counsel moved to strike the trial a of the

witness whose grand jury testimony was unavailable on the’

ground that the failure to keep a stenographic. record of

grand jury proceedings operated to frustrate the numerous

judicial decisions holding that grand jury minutes were

producible in particular circumstances.” In response to this

motion, the court announced that “it does sympathize with

the request and the basis for the request,’ but that the

motion would be denied."

tion of Petitioner's wife.’

The incident which gave rise to the char ges against

Petitioner allegedly occurred in Petitioner’s home. Accord-

ing to ‘the Gov ernment's witnesses, they went to. Petition-

ers home to question him regarding the whereabouts of

a certain fugitive and they entered. the home upon invita-

The principal factual disputes

at trial involved whether the agents remained in Petition-

/ers home after being instructed to leave, and whether

Petitioner drew a gun upon the agents to force them to

leave. Petitioner denied that he had drawn a gun at any-

time during the incident. He stated that he had gone to

a cabinet in his dining room to get some medication which

_he regularly used to treat a serious heart ailment when

he was suddenly attacked by one of the agents.’* He also

testified that he informed the agents the interview was

over and asked them to leave," and that after instructing

“8.

9:

10.

11.

12.

13.

14.

(A. 46)

(A. 46-47)

(A.-47)

(A. 48)

(A. 11-12, 37)

(A. 70-72)

(A. 68-69)

_*. 7 <

the agents to leave upon several occasions they remained

in his home and continued to charge him with participation

in various crimes and with involvement with a woman

other than his wife.’ On the basis of this testimony, de-

fense counsel requested that

_...the jury be instructed that upon a determination |

that the officers, the agents, had been instructed to

- leave or were not lawfully on the premises they should

reach a finding that the officers were not engaged in

the performance of their official duties, that is, they

.could not. conclude, beyond a reasonable doubt that

the officers were engaged in their official duties if it

is found at the time of the incident that the officers

were acting in an unlawful fashion by remaining on

the property or refusing to leave the premises..°~

The court denied’the requested instruction with the fol- | 3

lowing. observation: ,

The Court finds that that is not applicable.law. The

Court finds that a Special Agent of the Federal’ Bureau

of Investigation, when in the performance of investi-

gation of the criminal violations of the United States,

that he does not cease in the perfermance: of official

duties if he is engaged in a trespass of one’s property.

Although the conduct of trespassing may be. unlawful

and subject’ him to sanctions and penalties, it, none-

theless, does not change his-status from performance

of his official duties to his having terminated his

performance of his official duties.” -

The Ristrict Court did instruct the jury regarding the right

of the occupant of a home to use reasonable force to expel

a trespasser.'* No instruction was given, however, to tlie

15

16

17

18

effect that an officer who willfully refuses to leave a home.

. (A. 69-71)

. (A. 85)

. (A.83)

~ (A. 82-84)

g *

ve ¢

upon aici command of the occupant of the home, where

the officer is in the home only by consent of the occupant,

may no longer be considered to be engaged in the perform-

f e bara °

ance of his. official duties.

The jury, after a substantial period of deliberation,

acquitted Petitioner. on Count I of the indictment and

- convicted him on Count IT.

REASONS FOR GRANTING THE WRIT

I. The decision below, holding that the defendant's

’ knowledge of a federal officer's official capacity

is not an essential element of the offense defined

by 18 USC f. 111, raises a substantial and recurring

question of federal law which. has produced con-

flicting decisions in courts of appeals and which

should be settled by this Court.’

Petitioner was charged and ‘convicted of violating 18

USC § 111 —assaulting a federal officer engaged in the

performanice of his official duties. Before trial and during

trial, Petitioner contended. that it was incumbent upon the

Government to charge and prove, as an essential element

of 18 USC\§ 111, that Petitioner knew that the officers

allegedly assaulted were federal officers -engaged in the

performance of their official duties. That contention was

rejected when a motion to dismiss the indictment for failure

to state an offense was denied, when a motion for directed

verdict was overruled, and when a motion for new trial

was denied. The court below affirmed the judgment of

the district court with the following observation:

The statute herein involved does not: on its face

require proof of scienter as an element of the crime.

McNabb vs. United’ States, 123 F.2d 848 (6th Cir.

‘ 1941). Inspection of this record convinces this court

that there were no special facts requiring proof of

scienter in this case. Cf. United States vs. Rybicki, 403

F.2d 599 (6th Cir. 1968). And in any event, there was

ample testimony, including that of appellant himself,

9 ~'s

that the FBI Agents identified themselves not only*

_ orally but by producing and showing their identifica-

-tion cards before the events which led to the instant

-charge."” ‘

The issue raised regarding the elements of the crime -

of assaulting, resisting or impeding a federal. officer in the

performance of his official duties has concerned several

courts of appeals and has produced immense confusion

,and conflict.’ For example, the Fifth, Circuit has dealt:

with the issue in'a number of decisions.*' In several cases,

_including Hargett vs. United States, 183 F .2d 859 (5th Cir.

_ 1950), the court held that proof that the defendant knew

that the person assaulted was a federal officer engaged in

the performance of his official duties was essential to con-

viction under 18 USC § 111. In at least one other case, the)

same court held that 18 USC § 111 does not require proof

of knowledge of the identity of the victim, without making

any reférence to earlier conflicting’ decisions.. F inally, in

Pipes vs. United States, 399 F.2d 471, rehearing denied, 402

F.2d 271 (5th Gir. 1968), the Court of -Appeals for the Fifth

Circuit expressly overruled previous decisions holding that.

scienter was an element of 18 USC §,111. In so-ruling, the

court recognized that “there is authority to the contrary.””*

The Fifth Circuit was not the first to recognize the existence -

a

é

19. (App. 24).

20. See Annot., Scienter as Element of Offense of Assaulting, Re-

sisting or Impeding a Federal Officer,-10 ALR3d 833 (1966).

21. Cook ts. United States, 117 F.2d 374 (1941); Palmquist vs.

United’ States, 149 F.2d 352 (5th Cir. 1945), cert. denied, 326

U.S. 727; Hargett vs, United States, 183 F.2d 859 (5th Cir.

© 1950); Carter vs. United States, 231 F.2d 232 (5th Cir. 1956),

cert. denied, 351 U.S. 984; Hall vs. United States, 235 F.2d 248

(5th Cir. 1956). | ;

22. Bennett vs. United States, 285 F.2d 567 (5th Cir’ 1960). cert.

denied, 366 U.S. 911. gyi

23. 399 F.2d at 472..

: { ope as "10 Tie ek, j

of conflict regarding this issue. In United States vs. Chunn,

347 F.2d 717 (4th Cir. 1965), another-court observed:

Concededly, there is a wide variance among the |

decisions as to whether seientcr should be ‘alleged

and/or proved.”

The confusion and conflict regarding, whether or not

scienter is an element of 18 USC §'111 has not been limited

to the ‘Fifth Circuit. Diametrically conflicting decisions

have also issued- from the Fourth Circuit®* and the Sixth °

Circuit.”" The First Circuit has at least suggested that

-scienter is an.element which must be alleged and proved,”

while the Second Circuit has followed a relatively con-

sistent pattern in holding that scienter i is not-an element

of the crime.” :

Apart from the conflict within and between courts ‘of

appeals regarding the question 6f whether scienter is an

element of the offense of assaulting a federal officer in the ~

performance of his official duties, anomalous and highly

conftising decisions have been reridered which stiggest that

the question can only be resolved’on examination of the.

24. 347 F.2d: at. 721. | . a

25. Owens vs. United States, 201 F. 4 749 (4th Cir. 1953); com-

pare United States vs. “Vi ‘allace, 368 F.2d 537 (4th Ci ir. 1966).

26. Sparks vs. ‘United States, 90 F.2d 61 (6th Cir. 1937 ): United. .

States vs. Rybicki; 403 F.2d 599 (6th Cir. 1968) (dealing with —

26 USC § 7212(a} — obstructing officers of the Internal Reve-

nue Service engaged ‘in the performance of their official du-

_ ties); compare United States vs. Kiraly, “No. 21047 (6th Cir.,

decided July 14, 1971). ; Te

27. Portnoy ts. United States, 316 F.2d 486 (1st Cir. 1963), “cert.

denied, 375 U:S. S15:

28. E.g., United Siates ts. Lombardozzi, 335 F.2d 414. (2nd Cir.

1964), cert. denied, 379-U.S. 914; United States vs. Montanaro,

362 F.2d 527 (2nd.Cir. 1966); United States vs. Heliczer, 373

F.2d 241 (2nd Cir. 1967), cert. denied, 388 U.S. 917.

’

aa: oe

par ticular, facts in each case. For example, in United States

US: Rybicki, 403 F.2d-599 (6th Cir. 1968 ), the court in-

dicated that whether knowledge was an essential element

of the offense depended upon whether'the acts committed

- by the defendant “would have been crimes regardless of

the person against whom they were committed.”*’ Since

that determination could be made only after the’ facts

have emerged at trial, the Rybicki decision would per-

mit no means of determining the sufficiency of an in-

dictment in terms of whether thé indictment alleged’ -

every element of the offense charged. Another court, while

concluding that knowledge of the victim’s official capacity

was not an essential element of 18 USC § 111, added this

mysterious: comment:

Knowledge that the victim was a federal official .:

engaged in the performance. of his official duties is

critical at.the time of trial, of course, but the under-

lying considerations. of. the Congress in the adoption

of the statutes do not make’such specific knowledge

on the part of the defendant at the timé the defendant

acted an essential element of the offense.**

Many courts hate attributed the proposition that

knowledge of the victim’s official capacity is an essential’

element of the crime defined hy 18 USC $111 to this

Céurt’s decision in Pettibone vs. United States, 148 U.S.

197 (1893). Indeed, Pettibone would appear to’ constitute

very persuasive support for the’ position advanced by Peti-

tioner and rejected by the courts below. In Pettibone; it

was held that an indictment purporting to charge a viola-

tion of Section 5399 of the Reyised Statutes of the’ United.

States was fatally defective for failure to allege the requisite

scienter. The statute involved provided as follows:

Aa

29, 403. F.2d at 601-602,

30. United States vs. Wallace, supra, 368 F.2d at 539.

12

Every person who corruptly, or by threats or

force, endeayors’to influence, intimidate, or impede

any witness, or officer ‘in any court of the United.

States, in the discharge of his duty, or corruptly, or-by

threats or force, obstructs or impedes, or endeavors

to obstruct or impede, the -dué administration of

justice therein, shall be punished by a fine of not more

than five hundred dollars,. or by. imprisonment not

more than three months, or both." .

e

As_ is apparent: the statute did) not expressly require

knowledge on the part of the offender. Nonetheless, the

Court found the requirement of knowledge implicit in th

language of the statute: 3 3 .

It seems clear. that an indictment against a person

for corruptly or by threats or force. endeavoring to.

influence, intimidate or impede a witness or officer

ina court of the United States-in the discharge of his

duty, must charge knowledge or notice; or set out

facts that show knowledge or notice, on the part of

the accused that the witness or officer was such. And

the reason ‘is no less strong for holding that a person

is not sufficiently ¢harged with obstructing 6r imped-.

ing the due administration of justice in a court unless

it appears that he knew or had-notice that justice was -

being administered in such court.*” 7

The result in Pettibone strongly suggests a proper resolu-

tion of the instant case. As in Pettibone, proof of knowledge

of the #ictim’s official capacity is more than a mere tech-

nical requirement implicit in 18 USC § 111. It goes to the

principal objective the statutory proscription was designed

tg achievie—that of protecting federal officers in’ ‘the

performance of their official duties from interference or

attack. The statute would be overbroad, applicable to

conduct which no one would consider ‘¢riminal, and

threatening to substantial rights of citizens unless scienter_

is acknowledged as an element of the offense.

31, Quoted in Pettibone vs: United States, supra, 148 U.S. at 197.

32. 148 US. at 206.

.

—

gh Mee, > ee

13

The observation of the court. below that there was

ample testimony to support a finding that Petitioner knew

the alleged. victims of the crime charged in the indictment

were FBI agents does nothing to resolve the issue pre-

sented. While there was no question that the. agents had

identified themselves,.there was substantial question as to

whether or not the agents were engaged in the performance

of their official duties and w hether Petitioner had reason--

able cause: to believe they were so engaged at the time

of the offense charged. Furtliermore, regardless: of what

the testimony may have been, the issue was one which

should have been resolved by a jury upon: proper instruc-

tion. The issue was not presented to the jury for resolution

nor was it part of the charge contained in the indictment.

Q

II. The scope sit judicial discr etion in admitting, for

impeachment purposes, evidence that a defendant

had been convicted on criminal charges more than

30 years before the time of trial raises a substantial

federal question which has: not been resolved by

this Court and. which has led to conflicting deci-

sions in courts of appeals.

A question. which has confronted federal courts with —

increasing frequency in recent years relates to the power

of a trial court to exclude evidence of remote criminal ton-

victions where the government seeks to employ such con-

victions to impeach a defendant's testimony. Resolution

of this question is critical to: the. achievement “of some

‘uniformity in federal courts with respect to one of the most

fundamental aspects of the criminal trial process. Few

decisions are more intportant in the defense of a criminal

case than the question of whether or not the defendant will

take ‘the stand. Few considerations are more. relevant to

that tactical decision than the possibility that the defend-

ant may be impeached by prior convictions. .W hatever

limiting instructions may be given regarding the probative

value and the particularized purpose of evidence of prior

414

~ convictions, it is evident that the impact of prior con-

victions is apt to-be very great. .

‘Recognizing that the probable prejudicial impact of

a defendant's prior convictions will often be drastically dis-

proportionate to the legitimate probative value of ‘such

convictjons, one) court of appeals has expressly adopted

a balancing test which requires the trial court to weigh all

factors relevant to admissibility in exercising judicial dis-

cretion to admit or exclude evidence ‘of a defendant's prior

convictions.’ The mamier in which judicial discretion

should be exercised has-been a subject of substantial com-

ment'and investigation.*t Whether a trial court should be

invested with such discretion at all has led to _conflicting

decisions within circuits" and to conflict among circuits.*°

33. Luck vs. U nited States, 348 F.2d 763 (D. C. Cir. 1965).

34. See. e.g., Hood vs. United States, 365 F.2d 949 (D.C. Cir.

- 1966): Gordon vs. United States, 383 F.2d 936 (D.C. Cir. 1967 ).

- 35. E.g.. Shorter vs. United States, 412 F.2d 428° (9th Cir. 1969),

cert. denied, 396 U.S. 970 (a divided panel of the Ninth Circuit

refused to adopt a‘ balancing rule); United. States vs. Allison,

414 F.2d 407 (9th Cir. 1969) cert, denied, 396 U.S. 968 (the

balancing rule is fav roraBly discussed but not clearly adopted );

Plies vs. United States, 431 F:2d 727 (9th Cir. 1970) (court

asserts that earlier decisions had rejected the Luck balancing

test). f

36. United States vs. Hildreth, 387 F.2d 328 (4th Cir. 1967); United

States vs. Palumbo, 401 F.2d 270 (2nd Cir. 1968), cert. denied,

394 U.S, 947; Bendelow vs. United States, 418 F. 2d 42 (5th Cir.

1969) (w ithout mentioning the Luck test, the court holds that

|

a defendant may .be impeached as all other witnesses); United _ ,

States vs. Greenberg, 419 F.2d 808 (3rd Cir. 1969) (discretion-

arv’ balancing. test adopted ); United States vs. Johnson, 412

F.2d 753 (ist Cir. 1969) ( balancing test apparently adopted;

Luck cited); United States vs. Escobedo, 430 F.2d 14 (7th Cir.

‘ 1970) (the balancing test of Luck expressly rejected ); and

_United States vs, Scarpellino, 431 F.2d 475 (8th Cir. 1970)

‘(balancing test rejected). .

oe

3 tee RNS Sg ELE PREIS NAR OAD

It is difficult to determine the position of the court

below with respect to the discretionary power of a trial

court to ex¢lude evidence of ‘a defendaut’s prior couvic-

tions. The court states that: “under established rules Of

this circuit, ‘the felony convictions were admissible.’ In

support of that proposition, the court cites U nited States

vs. Wade, 364 F.2d 931 (6th Cir. 1966 ) — a case in which

the court merely stated the general proposition -that a

defendant: may be impeached by prior convictions once

he takes the stand in his own behalf. The court does not,

however, rely solely upon the established rule set forth in

United States vs. Wade, supra. It adds the following com-

ment:

And, in any event, we find no abuse of discretion

(See United States vs. Palumbo, 401 F.2d 270 (2nd

Cir. 1968) ) in the District Judge’ s ruling which could

be held to be reversible error under the total facts’ of

this case.” ae

This is the only nfention which appears in any decision of

the Sixth Circuit regarding the discretion of a trial court

to exclude evidence of prior convictions. If.such discretion

does’ exist in the Sixth Circuit, no guidelines have been -

suggested as to how that discretion should be exercised.

Furthermore, prior decisions of the court,-presumably fol-

lowed by trial courts, allow no basis for the -conelusion

that admission or exclusion of prior convictions is a dis-

cretionary matter. It cannot be assumed. that -the trial

court in the instant case responded to the request for

suppression of the defendant’s prior convictions in a man-

ner which reflects the intelligent’ exercise of judicially

acknowledged discretion. 7 | ‘

Petitioner's prior convictions were over 30 years old

at the time of trial. He was 19 when he had been convicted.

37. ( App. 25).

38. (App. 25).

pong

His sentences had expiréd almost 20 years before trial. His

testimony at trial’was critical in light of the fact that he

was the only witness .to the immediate events leading to

indictinent who J was not a government agent. The issue

presented is one which should: not be resolved on the basis

of unsupporte ‘d assumptions. It re Hates toa question far: ‘too

‘impertant to the integrity of the trial process to permit the:

disparate resolutions which now prevail in courts of appeals

throughout the cduntry. It is an issue which should be

resolved by this Court. ’ :

Ill.-The practice of failing to record grand jury pro-

ceedings, sanctioned by the court below, so im-

pedes compliance with decisions of this Court

establishing the right to production of grand j jury

minutes as to call for an exercise of this Court's

_power ‘of, supervision,

Petitioners motion for production of the grand jury

testimony of a trial witness was, according .to the trial

judge, “rendered moot” by reason of the fact that no

record of the grand jury proceedings had been kept. or

prepared. By the simple device of not recording: grand

jury proceedings, the Government was thus enabled to

prevent possible impeachment of a trial witness by use of.

testimony given before the grand jury. .The decisions. of

this Court, establishing a defendant's right to production

of a witness's grand jury. testimony, may be: effectively

circumvented by the practice sanctioned below. In Dennis

ts. United States, 384 U.S. 855 (1966), this Court re-

affirmed and broadened the policy allowing production

of grand jury minutes for purposes of testing the credi-

bility of a witness at trial. The trial judge was entrusted ,

with the:.function of * ‘deciding whether a case has been

made for production,” and. supervising the process of

production.” That function could not be performed.in the

39. 384 U.S. at -875.

17

nstant case for the simple reason that grand jury minutes

were not available. The whole thrust of the Dennis decision

was thus effectively frustrated. Petitioner’s motion to strike

the trial testimony of the witness whose grand jury. testi-

mony was unavailable was denied. Consequently, the

only sanction which might have effectively compelled com-

pliance with, the principle of Dennis. vs. United States,

supra, was rejected. ot

This Court, in the exercise of its supervisory juris-

diction over lower federal courts and, pursuant to the

express statutory authority of 28 USC § 753, is plainly

empowered to adopt a rule designed to promote fulfill-

ment of the production requirement announced in the

‘Dennis case. Section 753(b) provides,’ in pertinent part,

that verbatim records shall be kept of all “°° ° proceed-

ings as a judge of the court may direct’ or as may be. re-

“quired by rule or order of court ® ° *2"At least one federal

court, on the bass# 18 USC §-753(b), and pursuant to

the power invested in that court by Rule 57(b) of the

Federal Rules of Criminal Procedure: héld that grand jury

proceedings must he transcribed or otherwise _effectively

recorded."" The same rule must be adopted by this Court

‘if the integrity of the principle announced in Dennis ts.

United States is to.hbe preserved. :

IV. The determination: of the courts.below that fed-

eral officials who willfully and without legal

justification refuse.to leave the home of a private ©

_ citizen are still aeting in the performance of their

official duties, within the meaning of 18 USC

§ 111, raises an important federal question which

has led to conflicting results in courts of appeals.

and which has not been resolved by this Court.

_ At trial, the court was requested to instruct ‘the’ jury

that if they should find that the agents nanted in the

40. United States ts. Gramolini, 301° F. Supp. 39 42 (RI.

D.C. 1969).

Se

> |

18 oa eine

indictment “had been instructed to leave [Petitioner’s,

home] or were not lawfully on the premises they should

reach a finding that the officers were not engaged in the

“performance of their official duties.”'' The instruetion was

dlenied. The jury was instructed that a citizen had the right

to use reasonable force to expel an intruder or trespasser.

That charge, however, did not go to the question of .

whether an essential element of the offense charged could -

be established upon evidence which demonstrated that FBI.

agents remained in the homé of a private citizen under no

colorable claimrof right and after having been instructed

to leave by the owner of the premises. If, upon such evi-

dence, the jury might be justified in concluding, that the

agents were no longer engaged in the performance of their

official duties, the instruction requested should have been

given and the charge of trespassing would not constitute

an adequate substitute for the requested’ charge. The issue.

raised has led. to conflicting decisions in courts of appeals.

In Foster vs. United States, 296 F.2d 65 (5th Cir’ 1962),

the court held that evidence tending to demonstrate that

federal officers were engaged in an act of trespass at the

time they were allegedly assaulted was relevant to the.

question of: whether those officers were engaged in the

performance of their official duties. It was for the jury

to determine, then, whether the fact that the officers were °

acting unlawfully ‘removed them from the scope ‘of their

official duties so as to render the protection afforded by

1S USC § 111 unavailable. Other courts, on the other hand, .

have held that the legality of the conduct of those officers

described by 18 USC § 1114 is irrelevant to the question

of whether their conduct was in the performance of their

official duties. For example, in Arwood vs. United States,

134.F.2d 1007 (6th Cir. 1943), the defendant urged that

the officers assaulted were not engaged in the performance -

of their official duties but were conducting an: unreason-

‘41. (A. 85)

“5

19

ee

»

Monee ;

able search of the defendant's home and that “therefore -

the statute under which he was .indicted afforded the

deceased no. protection.” The court responded to this

contention as follows:

We cannot accept this view. We need not determine

whether the deceased and his associates were unlaw-

fully invading appellant's home or were engaged. in

‘an unreasonable search. However pertinent that in-

quiry might become in a prosecution of appellant for

. the operation of an unregistered distillery, it. is not

necessary to.decision here. The fact remains that the

entry’ of the deceased into the house or upon the

premises. and any search made there was in ‘the ©

course of the investigation and germane to the per-

formance of the duties of the officers while bona fide

acting under the color of authority.”

Othér courts have also héld that the illegality of an officer’s

conduct is irrelevant to the question of whether or not the

officer is engaged in the performance of his official duties

within the meanifg of 18 USC § 111.”

_ The importance of-the issue raised rests upon the fact

that it tends to define the extent to which a private citizen

_ may legitimately resist unlawful official conduct. Petitioner

submits that the issue is one which should be clarified by.

this. Court. ie |

?

Conclusion

For these reasons, a writ of certiorari sho issue to

review the judgment and opinion of the Sixth Circuit.

Respectfully submitted, —

- GERALD’ A. MESSERMAN

42. 134 F.2d at 1010. a ph

43. Hodgdon vs. United States, 365 F.2d 679 (Sth Cir. 16s)

Unjted States vs. Heliczer, 373 F.2d 241 (2nd. Cir. 1967), -cert.\ -

denied, 388 U.S.. 917.

<3

+ APPENDIX,

ORDER DE NYING MOTION TO DISMISS

‘ INDICTMENT.

(Filed: May 6, 1970.)

LamBros, District Judge:

The defendant moves to dismiss the two-count indict-

ment upon the ground that the indictment fails to charge -

an offense cognizable under the law of the United States.’

The defendant was charged under 18 U.S.C. § 111 which

reads: as follows:

“Whoever forcibly. assaults, resists, .opposes, im-

pedes, intimidates, or inter feres 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 im- -

prisoned not more than three vears, or both.

| Whoever, in the commission of any such acts uses

-a deadly or dangerous weapotis, shall be fined not more

than — or imprisoned not more than ten years,

or both.

The defendant alleges that the two-count ne

_is defective in that it fails to charge (1) that the defendant

_ knew'that the persons allegedly assaulted were officers of

the United States and (2) that the defendant knew that

the persons. allegedly assaulted were engaged in the per-

formance of their official duties. at the time of the -act\,

_char ged. Referring to the above statute; one notes that the

language of the statute does not include the requirement

; of knowledge or scienter. Nonetheless, the defendant avers

that knowledge or-scienter must be implied in the statute

and in turn, must be charged in, the indictment. The Court

disagrees with the .defendant.

Although ‘there are cases to the contrary, the recent

cases which have interpreted and applied 18 U.S.C. § 111

2

ae

mivanged eroka ih ete TAS iE at acs a8

have held that knowledge or scienter are not required in

order to charge-a crime under the’ above statute.. See e:g.,

Burke v. United States, 400 F.2d 866 (5th Cir. 1968);

_ McEwen v. United States,.390 F.2d 47 (9th Cir. 1968);

_ 1941); Ammot., 10 A.L.R. 3d 833 (1966). The reason for

the_ statute “was amply explained in the case of | United |

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

See also McNabb v. United States, 123 F.2d 848 (6th Cir.

States v. Wallace, supra. There, the Court stated:

“Early in the history of this country, the Con:

gress found it necessary to grant customs collectors _

and others the right to remove’ state prosecutions

- against them arising out of the performance of their-

official duties to a federal court for trial there. It was

but a corollary of such statutes that the antecedents of

§§ 111 and 1114 were enacted to’assure that those who

unlawfully attacked or interfered with federal officials

engaged in their official duties were triable in a fed-

eral court and were not left to the possibly grave un-

| certainties of retribution in a state court in. which the

_ juries might be quite unsympathetic to the federal

purpose. 368 F.2d at 538-39.

More important for purposes of this. motion is ; the ‘ational

for not requiring knowledge or scienter as an element -of

the offense under 18 U.S.C. § 111. As succinctly expressed

in the case of McEwen .v. United States, supra:

“is ) ‘The courts should not by judicial legislation »

, change the statute by adding, in effect, the words

‘with knowledge. that such person is a federal officer’

[to its provisions]’, [citing United States v. Lombar-

dozzi, 335 F.3d 414, 416 (2d Cir.-1964)]...and

(2) the common law ‘rule that scienter was a neces-

sary element in the: indictment and proof of every’

‘crime has been modified with respect to statutes, the

purpose of- which would be obstructed by such re-.

* quirement.” 390 F.2d at 50.

The Court finds the above rationale quite persuasive. .

CLR Merry TUNE

22

Therefore, for the foregoing reasons, the Court denies

the motion. to _dismiss the indictment of the defendent

UW illiam -Kir: aly.

. Ir Is So OrDERED.

Tuomas D. LAmMBRos, _

‘United States District Judge.

MEMORANDUM OPINION AND ORDER.

| (Filed September 29, 1970.) -

~ LAs Bros, District Judge:

On July 1, 1970, the ie was found guilty of

a violation ‘of 18 U.S.C. *§ 111. At that time, the Court im- |

posed.a three year sentence upon this finding but deferred

the execution of the sentence until a medical report as to |

.. the defendant's, physical condition was submitted. Later,

the defendant moved for a new trial alleging eizht grounds

in support thereof. On September 24, 1970 the Court

heard arguments in maee court in regard to the defendant’ Ss

motion for a new trial.

“Upon ‘consideration of the motion of the defendant for

a new trial, the Court denies the motion. The Court in an

order issued before trial ruled on grounds one and ‘two of

_the.defendant’s motion for a new trial. The Court finds

that its ruling should not be disturbed. The case of United

‘States v. Rybicki, 403 F.2d 599 (6th Cir. 1968). is not ap-

plicable to the present case. The Court finds that the case

of United States v. Rybicki should -be limited to its facts

and is distinguishable frorn the present case. The remain-

ing grounds of the defendant in support of his motion are

_ also not well taken.

° é + “

Ss — aa ef Mere c

* AF Pa CBOE “ g. :

. ’ ‘

‘ ; \

,’

‘

(rm,

ad

: é

anes Ne PERSE RMS

23

- Accordingly, the motion of the: defendant for a new.

trial is hereby denied. - |

Ir'Is So Onpere. f |

b tal

ty

~~ Tuomas .D; Lamsros,

? 2 _- United States District. Judge. :

5 : .

- ¢

ae

ERMA Ear:

——

24

OPINION OF THE. UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT’

| AFFIRMING CONV ICTION

(Decided and Filed July. 14, 1971.)

Before: EpwaArps, CELEBREZZE and Brooks, Circuit

Judges.

Per CurtaM. Appellant appeals from a jury awies of

ctiilty and a sentence of three years which was subsequent-

ly suspended in favor of five. years probation. Appellant.

had been indicted for and cony icted of violating 18 U.S.C. °

A 111 (1964) which prohibits assaulting or interfering with

a federal officer in the performance of his duties. The same

jury found appellant not guilty under another count alleg-

ing violation of the same statute. | Ra) “18,

“Appellant presents a number of issues, the most sub- |

stantial of which represent claims that the District Judge

_committed “reversible errer by failing to. recognize -that

‘government proof of scienter was.an essential element of |

the crime charged, and by failing to give appellant's re-

quested charge concerning trespassing.

The statute herein involv ed does not on its face re-

er proof of scienter as an element of thé crime. McNabb - -

. United States, 123 F.2d 848 (6th Cir. 1941). Inspection

ot this record convinces this court that ‘there were no _.

special facts requiring ptoof of scienter in this case. Cf.

United States v. Ryhicki, 403 F.2d 599 (6th Cir. 1968).

‘And in any event, there was ample testimony, including

that of appellant himself, that the FBI Agents identified

‘ themselves not only orally but by producing. and showing -

their identification cards before the ev ents which led to the »

‘instang. charge.

-As to appellant's tréspass claims, we have read appel-- |

lant’s proffered charge and the charge as.given by the °_

‘ 25

District Judge and find 1 no rev ersible error in the charge a: as

given when taken as a whole.

The only other appellate is issue of possible substance is

appellant’s claim that his pretrial motion for suppression of

any reference to appellant’s prior felony convictions in the

event appellant took the staid, should.have been granted,

and that the District Judge’s failure to do so-constituted

reversible error. Actually, appellant testified and on direct

examination his.own counsel elicited the facts which he

‘elaims the trial judge should have suppressed. Under es-

tablished rules of this cir¢uit; the felony convictions -were

admissible. United States v. Wade, 364 F.2d 931 (6th Cir. °

1966). iy ey | pee 2

_ And, in any event, we find no-abuse of discretion

(See United States v. Palumbo, 401 F.2d 270 (2nd Cir.

1968) ) in the District Judge’s ruling which could be held

to be reversible error under the total facts of this case.

The judgment. of the District Court is affirmed.

¥.3