# Petition for A Writ of Certiorari — Kiraly v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1568%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for A Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 404 U.S. 915 ## Text +m Lal -— ~~ Ar 43) 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1568%3A1. Public record. Not legal advice.