Petition for Writ of Certiorari — Peel v. United States

SUPREME COURT: Ora

- MICBAEL ROBAK,

IN THE SUPREME COURT

OF THE UNITED STATES

OF AMERICA

_ OCTOBER TERM, 1974

ve__74-598

RICHARD NEIL MYERS, PETITIONER

Vv.

: UNITED STATES OF AMERICA, RESPONDENT

PETITION OF RICHARD NEIL MYERS

FOR WRIT OF CERTIORARI

IN THE SUPREME COURT

OF THE UNITED STATES

OF AMERICA

OCTOBER TERM, 1974

No:

RICHARD NEIL MYERS, PETITIONER

V.

UNITED STATES GF AMERICA, RESPONDENT

PETITION OF RICHARD NEIL MYERS

FOR WRIT OF CERTIORARI

Buddy W. Gregory

Attorney for Petitioner

Richard Neil Myers

508 Central Nat'l. Bank Bldg.

Houston, Texas 77002

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United States v. Wiltherger, 5 Wheat 76, 96

(U.S. Supreme Court, 1920)... ccccecess 6.9. 10

Bennett v. United States, 285, F 567

ee I, SUED o och pod eu Peananeeess 6

United States v. Hudson and Goodwin,

7 CE BP ce cnn, NO Cer OP 9, 10

United States v. Chase, 135 U.S. 225 ...... 9. 10. 11

EO; I a a os on a eens bee ens 9

Fasulo v. United States, 272, U.S. 620..... 9,10, 11

United States v. Resnick, 299 U.S. 207..... 9. 10

Labnor v. United States, 358 U.S. 169, 178. 10

Caulder v. Ball, 3 Dall, 386 .......0520.5: 10

Constitution:

Pe IE cg oc vc cake ans cicnaws 4,8

Fitth Amendment of the United States

Se eat chcakaedaceena os cas 4.8

Statutes:

ee are cdr hk se ueedeeaeeee ene 7

ee I a. ci a Gh cnn SOR aR OSes 4,7

Pe css cas ae eas nase ae

NS ONE Vos che ceawe cee dara ewees 3

Reorganization Plan No. 2 of 1973, U.S.

Code Congressional and Administrative

News, 5354, March 26, 1973 «05.005 csecces: 4

Miscellaneous:

House Report No. 1593 73rd Congress 2nd

MNES cr xa Goals aectes kee’ bs ieee eee 7, A-20

Senate Report No. 535 73rd Congress 2nd

MG SEEN i hd chkc cha ckee ean sans is 6, A-17

Memorandum Opinion of Judge Bonsal in

Hasimer dated May 25, 1970 ............. A-22

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) Senn cnneemetinammene on

TO THE HONORABLE JUDGES OF SAID COURT:

COMES NOW Richard Neil Myers, Petitioner, and prays

that a writ of certiorari issue to review the Judgment of The

United States Court of Appeals For The Fifth Circuit revers-

ing the judgment of the United States District Court, South-

ern District of Texas, Houston Division and denying _ his,

petition tor rehearing and petition for rehearing en banc in

said Court.

REPORTS OF THE OPINIONS BELOW:

The order of the United States District Court, Southern

District of Texas in cause number 73-H-376 dated and entered

the 4th day of January, 1974, is reported in 369 F. Supp.

594. The opinion of The United States Court of Appeals Fifth

Circuit in caus > number 74-1265 Summary Calendar reversing

the trial Court, dated and entered August 5, 1974, is reported

in 497 F2d 1369. The opinion of The United States Court of

Appeals Fifth Circuit in cause number 74-1265 denying the

petition of Richard Neil Myers for rehearing and his petition

for rehearing en banc, dated and entered October 17, 1974, is

not yet reported. A copy of the Memorandum and Order and

the Order of the United States District Court For the South-

ern District of Texas, Houston Division is found in the

Appendix hereto pages_A:l_ through__A-5_

A copy of the opinion of the United States Court of

Appeals, Fifth Circuit dated August 5, 1974, reversing the

trial Court is found in the Appendix hereto, pages_A-6 _

through_A-14 _.

A copy of the Judgment of the Fifth Circuit dated Au-

gust 5, 1974 is found in Appendix page A-15.

A copy of the letter from the Clerk of the United States

Court of Appeals Fifth Circuit indicating the petition of

Richard Neil Myers for rehearing and the petition for rehear-

ing en bane was denied is found in the Appendix hereto

page__A-!6_

STATEMENT OF GROUNDS ON WHICH

JURISDICTION IS INVOKED

Jurisdiction is confered on this court by Rule 19 of the

Supreme Court Rules wherein it is stated that if a lower Fed-

eral Court has decided a Federal question in a way in conflict

with applicable decisions of this Court; further, the jurisdic-

tion is confered when an important question of Federal Law

l

which has not been but should be settled by this court comes

before it. The Fifth Circuit held contrary to previous decisions

of the Supreme Court when they, by construction, applied

Criminal Sanctions to an Administrative and Civil Statute

and this has been held strictly beyond the jurisdiction of courts

by the Supreme Court. Further the Supreme Court should

pass upon this question and settle once and for all whether

the saving statute 5 U.S.C. 907(a) confers upon the suceeding

department or agency criminal protection as well as civil au-

thority that the previous department or agency enjoyed.

The Federal Court, Southern District of Texas, Houston

Division on January 4, 1974, dismissed the Criminal Indict-

ment against the defendant Richard Neil Myers. The United

States Court of Appeals Fifth Circuit in Cause No. 74-1265

Summary Calendar in an Order dated and entered August 5,

1974, reversed the ruling of the Federal Court in Houston. The

United States Court of Appeals Fifth Circuit in cause no. 74-

1265 in an order dated and entered October 17, 1974, de-

nied the petition for rehearing and petition for en banc of Rich-

ard Neil Myers with respect to its judgment of August 5, 1974.

QUESTIONS PRESENTED FOR REVIEW

A. Can an indictment stand, charging assault on “A

SPECIAL AGENT OF THE DRUG ENFORCE-

MENT ADMINISTRATION, UNITED STATES

DEPARTMENT OF JUSTICE” when the applicable

United States Statute clearly states that it is an

offense to assault “anv officer or employee of the

Bureau of Narcotics and Dangerous Drugs.”’?

B. Would Article 907(a) of Title 5 of the United States

Code and language set forth in a regulation of the

Acting Administrator of the Drug Enforcement

Administration found in 38 Fed. Reg. 1838 permit

such an indictment to stand?

C. Would the failure of a Court to dismiss such an

indictment constitute deprivation of the rights of

Richard Neil Myers without due process of law

prohibited by the Fifth Amendment of the Con-

stitution of the United States of America?

D. Would permitting the indictment set out above to

stand be contrary to the provisions of Article 1,

Section 9 of the Constitution of The United States

of America which stands in part that: “No Bill of

Attainder or ex post facto Law shall be passed.”’?

CONSTITUTIONAL PROVISIONS, STATUTES, AND

REGULATION THE CASE INVOLVES

Title 18 U.S.C. Section 111 provides in full as follows:

“Assaulting, resisting or impeding certain officers or

employees

Whoever forcibly assaults, resists, opposes, impedes,

intimidates, or interferes with any person designated in

Section 1114 of this title while engaged in or 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 or dangerous weapon shall be fined not more than

$10,000 or imprisoned not more than ten years, or both.”

Titie 18 U.S.C. Section 1114 provides in full as follows:

“Whoever kills any judge of the United States, any

United States Attorney, any Assistant United States Attorney,

or any United States marshal or deputy marshal or person

employed to assist such marshal or deputy marshal, any

officer or employee of the Federal Bureau of Investigation

of the Department of Justice, any officer or employee of the

Postal Service, any officer or employee of the secret service

or of the Bureau of Narcotics and Dangerous Drugs, any

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

employee of any United States penal or correctional institu-

tion, any officer, employee or agent of the customs or of

the internal revenue or any person assisting him in the execu-

tion of his duties, any immigration officer, any officer or

employee of the Department of Agriculture or of the Depart-

ment of the Interior designated by the Secretary of Agricul-

ture or of the Department of the Interior to enforce any Act

of Congress for the protection, preservation, or restoration

of game and other wild birds and animals any employee of

the Department of Agriculture designated by the Secretary of

Agriculture to carry out any law or regulation, or to perform

airy function in connection with any Federal or State pro-

gram of Puerto Rico, Guam, the Virgin Islands of the United

States, or the District of Columbia for the control or eradica-

tion or prevention of the introduction or dissemination of

animal diseases, any officer or employee of the National Park

Service, any officer or employee of, or assigned to duty in,

PRRAA RASS

Bi Sh a sn BP ot ae a

‘

the tield service of the Bureau of Land Management, anv

emplovee of the Bureau of Animal Industry of the Depart-

ment of Agriculture, or any ofticer or employee ot the Indian

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

of the National Aeronautics and Space Administration direct-

ed to guard and protect property of the United States under

the administration ‘and control of the National Acronautics

and Space Administration, any security officer of the Depart-

ment of State or the F oreign Service, or any officer or em-

plovee of the Department of Health, Education and Welfare

or of the Department of Labor assigned to perform investi-

gative, inspection, or law enforcement functions, while engag-

ed in the pertormance of his official duties, or on account of

the pertormance of his official duties, shall be punished as

provided under sections 1111 and 1112 of this title.”

litle 5, Section 907(a), United States Code provides in

part as follows:

“A statute enacted, and a regulation or other action

made, prescribed, issued, granted, or pertormed in respect of

or by an agency or function affected by a reorganization

under’ this chapter, before the effective date of the reorgani-

zation, has, except to the extent rescinded, moditied, super-

~-seded, or made inapplicable by or under authority of law or

by the abolition of a function, the same effect as if the re-

organization had not been made. However, if the statute,

regulation, or other action has vested the functions in the

agency trom which it is removed under the reorganization

plan, the function insofar as it is to be exercised after the

plan becomes etféctive, shall be deemed as vested in the

agency under which the function is placed by the plan.”

Reorganization Plan No. 2 of 1973, 1973 U.S. Code

Cong. & Admin. News 3554 provides in part as follows:

“Sec. 3. Abolition. The Bureau of Narcotics and Dangerous

Drugs, including the Office of Director thereof is hereby

abolished, and Section 3(a) of Reorganization Plan No. 1 of

1968 is: hereby repealed. The Attorney General shall make

such provision as he may deem necessary with respect to

‘terminating those attairs of the Bureau of Narcotics and

Dangerous Drugs not otherwise provided for in this Reorgani-

zation Plan.”’

Article 1, Section 9, of the U.S. Constitution

Fifth Amendment of the U.S. Constitution

STATEMENT OF THE CASE:

Richard Neil Myers. one of the Defendants in this cause

was charged by indictment with assaulting, “Robert Surovec

a Special Agent of the Drug Endorcement Administration,

United States Department of Justice... “, on or about the 27th

day of August, 1973. Tne indictment alleges a violation of 18

U.S.C. L11. The defendant, Richard Nei! Mycrs moved to dis-

miss the indictment for failure to charge an offense on the

grounds that agents of the Drug Enforcement Administra-

tion are encompassed in I8 U.S.C. 111, because Section I11

refers to assaults against any person designated in Section 1114

and Section 1114 does not mention Special Agents of the

Drug Enforcement Administration. On January 4, 1974,

Judge James Nole of the Southern District of Texas, Houston

Division, granted the motion of the defendants and dismis-

sed the indictments against each defendant including the in-

dictment against Defendant Richard Neil Myers. The United

States has brought this Appeal from the Order of Dismissal.

The jurisdiction of the Federal District Court in Houston

is based upon the fact that the offense charged is against a

United States Official for which Sanctions have been inacted

if binding on this defendant that would confer jurisdiction up-

on the court.

On November 6, 1973, Richard Neil Myers filed his MO-

TION TO QUASH THE INDICTMENT FOR FAILURE TO

CHARGE AN OFFENSE.

By order dated and filed January 4, 1974, the indict-

ment involving Richard Neil Myers and the three other defen-

dants therein charged, was dismissed by the Honorable James

Noel, Judge of the United States District Court for the

Southern District of Texas, Houston Division.

From this ruling the United States of America appealed

to the United States Court of Appeals for the Fifth Circuit.

By judgment dated and entered August 5, 1974, The United

States Court of Appeals, Fifth Circuit reversed the order of

the Honorable Judge James Noel dated January 4, 1974. On

the 27th day of August, 1974, Richard Neil Myers filed his

Petition For Rehearing and Petition For Rehearing En Banc

in the United States Court of Appeals, Fifth Circuit. On

October 17, 1974, the United States Court of Appeals, Fifth

Circuit entered its order denying the Petition for Rehearing

and the Petition for Rehearing En Banc filed by Richard

Neil Myers.

prec pire) eons PRIN DRE T PAO TST OS OM OO NRT Ee

Becax pbiced

On October 24, 1974, Richa 4 Neil Myers filed his Peti-

tion of Richard Neil Myers For Stay Of the Mandate of The

Un ted States Court of Appeals For the rifth Circuit in cause

number 74-1265.

On October 30, 1974, by order dated and filed on that

date The United States Court of Appeals For the Fifth Cir-

cuit ordered the issuance of the mandate of said Court stayed

to and including the l6th day cf November, 1974.

ARGUMENT:

The issue in this case is whether, by construction, the sta-

tute may be read to cover the facts in the instant case. Shou!d

there be judicial creation of crimes by construction or inter-

pretation of a statute? We think not. The dangers are too

grave and those very dangers are basis of the ancient maxim

that criminal statutes should be strictly construed. In the

words of Chief Justice Marshall:

“The intention of the legislature is to be collected from

the words they employed. Where there is no ambiguity in

the words, there is no room for construction, “United

States vs. Wiltherger, 5 Wheat 76, 95.

Some indication of the importance of the precise langu-

age of the statute to decision tn a case like this can be gleaned

trom “Bennett v. United States, 285 F. 567, Fitth Circuit 1961.”

There, the question was whether officers of the Border Patrol

were to be included within the statute. Section 1114 makes

no explicit reference to the border patrol. It does, however,

contain the language, “Any immigration officer.” language

ampiy sufficient to described Border Patro! Officers without

ambiguity. Accordingly tue statute applied. We point out there

is no language in the statute reading “any narcotics officer”.

If Congress had intended such a broad protection to be in-

cluded in the statute we can certainly presume it knew how to

say So.

In fact. the Department of Justice has repeatedly told

the Congress precisely how to say so, the statute was first en-

acted in the 73rd Congress, 1934; it indicated in report num-

ber 535, Senate reports on public biils, 73 Congress 2nd Ses-

sion, containing the letter of the Honorable Homer Cummings,

emetic okt ee ae

Attorney General of the United States, to the chairman of the

Senate Committee on the Judiciary recommending the enact-

ment of a “broad, general statute”, covering assaults, etc.

upon “any officer or employee of the United States.” The

senate voted its approval of just such legislation, but the House

did not, supporting instead more restrictive statutes specific-

aily designating the officers to whom it applied. The Confer-

ence committee report, report number 1593, 73rd Congress,

2nd session, indicates the acquisence of the Senate in the

House version. The broad statute suggested and supported by

Attorney General Cummings was never enacted. The specific

and narrowly drawn act, which with subsequent amendments,

survives as 18 U.S.C. 1114, was enacted instead. What the

government now seeks, is the transmutation by this court of

that statute into just such an act as was rejected by the Con-

gress.

The point of the foregoing discussion is to signify that

even if the language of the act would be considered ambigu-

ous, the legislative history of the act eliminates whatsoever any

ambiguity. The statute is clear, precise and unambiguous. It

does not encompass the instant case.

The government attempts to find some comfort in the

provisions of 5 U.S.C. 907(a) governing the functional con-

tinuity of federal agencies reorganized without specific con-

gressional authority under reorganization plans pursuant to

5 U.S.C. 906. Section 907(a) nowhere provides punishment

for any individual who trangresses its mandate. In order to

determine the scope of a Criminal Statute we must look to

the Cr.minal Statute, not to an administrative housekeeping

provision which was never intended to define crime. It is en-

tirely accurate to refer to sccticn 907(a) as a saving statute,

but the government would have it save something that was

never there to be saved. The history or Section 1114 again

demonstrates that is not what the Congress had in mind at all.

When the name of the United States Post Office Department

was changed to the United States Postal Service, Section il i4

was altered by explicit amendment, not by reliance on some

saving statute. And, when the Bureau of Narcotics and Dan-

gerous Drugs was created in the Department of Justice to as-

sume the functions of the former Bureau of Narcotics in the

Treasury Department, Section 1114 was amended explicity;

_inaiaiae an: eaeianeanatinnieneearen

Biskasatiacin USM IE My as

no such amendment has been made as the result of the crea-

tion of the Drug Enforcement Administration. It is in this con-

nection that a review of United States vy. Hasimar, Opinion

set out in the appendix, is pertinent, in Judge Bonsal’s mem-

orandum opinion. That opinion released on May 23, 1970,

held that agents of the Bureau of Narcotics and Dangerous

Drugs were not covered under the statute in its then existing

form which designated agents of the Treasury Bureau of Nar-

cotics. Indictment was dismissed and the defendants in that

case were freed subject to the provisions of state law. The gov-

ernment in that case promptly took appeal to the Court of Ap-

peals for the 2nd Circuit. While the appeal was pending. Con-

gress amended the statute and explicitly listed agents of the

Bureau of Narcotics and Dangerous Drugs. The government,

however, did not pursue, the particular defendants involved

or the particular crime it had attempted to describe in that in-

dictment. Instead, on the government’s motion, its appeal

was dismissed as moot. In actuality the appeal was not moot.

If Judge Bonsal’s decision had been reversed by the Second

Circuit, defendants would have been called upon to answer at

the bar of the District Court for the charges against them. One

does not judge mootness ty the condition of general law, but

rather by the impact of intervening circumstances on the par-

ties of a particular law suit. What emerges is the recognition

even by the Department of Justice that there was no benefit to

be gained in the appeal of Hasimar. The Department of Jus-

tice itself recognized the view of the law for which we contend

here.

Congress has demonstrated its ability in instance after

instance to speedily correct any defect in a statute as this one

and it is up to Congress to afford the specific Federal protec-

tion the government believes is necessary.

There is a principal at stake in this case which is of para-

mount importance. The principal, whether it be expressed in

terms of statutory construction of the ex post facto clause of

Article |. Sec. 8 of the Constitution of the United States. or in

terms of the due process clause of the Fifth Amendment of

the same document, holds it contrary to the entire constitu-

tional history of the republic to punish for crimes which have

not been specifically designated by the Congress prior to their

commission. The import of that principal has been recognized

in the uniform force of Supreme Court decision beginning with

the case for criminal liable of newspaper editor because he

said nasty things about Thomas Jefferson, United States v.

Hudson and Goodwin, 7 Cranch 32, to more recent decisions

involving lunch counter sit-ins, Bouie v Columbia, 378 U.S.

347 and Travel to Cuba without a validated passport, United

States v. Laub, 385 U.S. 475. Setting his face against the defi-

nition of crime by judicial fiat Chief Justice Marshall held in,

Hudson and Goodwin, that the courts in the United States are

without jurisdiction over common law crimes. He said:

“The legislative authority of the Union must first make

an act a crime, fix a punishment to it, and declare the

court that shall have jurisdiction of the offense.” The

United States v. Hudson and Goodwin, 37 Cranch 32, 34.

The great Chief Justice carried his logic further in the United

States v. Wiltberger 5, Wheat 76-96:

“To determine that a case is within the intention of a

statute, its language niust authorize us to say so. It would

be dangerous, indeed, to carry the principal, that a case

which is within the reason or mischief of a statute, is

within its provisions, so far as to punish a crime not enu-

merated in the statute, because it is of equal atrocity, or

of like character, with those which are enumeratd.”

In 1819, the Supreme Court, United States v. Chase 135 U.S.

255, confined a criminal obsenity statute within its letter quot-

ing Ashurst, J. in Jones v. Smart, 1 T.R. 51:

“It is safer to adopt what the legislatures have said than

to suppose what they meant to say.”

In Fasulo v. United States 272 U.S. 620 the Court states the

principal this way:

“There are no constructive offenses, before one can be

punished, it must be shown that it is a case plainly within

the statue”, 272 U.S. 620, 629.

In the United States v. Resnick, 299 U.S. 207, Federal Regu-

lations enforceable by criminal sanctions regarding the status

for specific sized tin cans used to contain fruits and vegetables

can not be extended to tin cans of different size. In a case par-

ticularly applicable to this court, the court held in Pierce v.

United States, 314 U.S. 366, that a statute prescribing the false

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impersonation of government officials did not criminalize

the impersonation of an official of the Tennessee Valley Au-

thority because TVA was a government corporation and the

statute did not prescribe impersonation of an official of a gov-

ernment corporation. The defendants conduct, while it may be

reprehensible, it is not defined in the statute.

In the United States v. Laub, 87 Supreme Court 574,

1967, an attempt was made to prosecute persons traveling in

restricted areas without proper passport authorization. The

Supreme Court of the United States in affirming the District

Court’s Dismissal of the Indictment held:

“We agree with the District Court that the indictment

herein does not allege a crime. If there is a gap on law,

the right and the duty, if any to fill it did not fall upon

the courts . . . Crimes are not to be created by inference.

They may not be constructed nunc pro tunc.” Opinion at

page 581.

And in Bouie v. Columbia 384 U.S. 347, even a state as

opposed to federal, prosecution was struck down for the same

reason. The state statute whose meaning had been expanded

by the supreme court of the state could not support prosecu-

tion upon the expanded theory

All of these cases indicate the care with which the courts

of our land must resist easy blandisments of the prosecutors

to punish reprehensible conduct in the absence of unequevo-

cable and precise language of the Congress to finding such

conduct as a crime. As we have noted, this cause, this elemen-

tal notion in our jurisprudence is sometimes phrased in terms

of the rule of Congress, courts will choose the alternative of

leniency. Ladner v. Urited States, 358, U.N. 169, 178. More

frequently, it is viewed as an element of due process. Some-

times, as in Laub and Bouie, with its citation to Calder v. Bull,

3 Dall, 386, there is a gloss of ex post facto clause operative in

the decisional process. Whatever the rationale we think that

the principal clearly emerges and is worthy of appication by

this court in the instant case.

The Supreme Court has dealt with things like manslaugh-

ter, (Wiltberger) extortion (Fasulo) obsenity (Chase) impure

fcods (Resnick) a politically inspired lying (Hudson and Good-

win). If public opinion in the era of the Alien and Sedition

laws could be expected to react strongly against sexual lies

10

about Thomas Jefferson the era of Comstock could be ex-

pected to produce an equal reaction against the obsenity in-

volved in the Chase case, the era of prohibition against the ex-

tortion involved in Fasulo, and the era of cold war and missile

crimes against the charges involved in Laub. Preserving the

principles of the constitution is of paramount importance.

For the reasons set forth above we respectfully pray that this

court uphold the judgment of the District Court in Houston

dismissing the indictment and reverse that of the Fifth Circuit.

CONCLUSION

For the reasons set herein the petition for Writ of Cer-

tiorari should be in all things granted and a Writ of Certiorari

should issue to review the judgment of the United States

Court of Appeals for the Fifth Circuit.

Respectfully submitted,

f F By —_—

p< _ Buddy W. Gregory

Attorney for Petitioner

508 Cen. Nat'l. Bk. Bldg.

Houston, Texas 77002

CERTIFICATE OF SERVICE

I, Buddy W. Gregory, Attorney for the Petitioner Rich-

ard Neil Myers, certify that all parties required to be served

have been served and I hereby certify that I have served the

foregoing petition for Writ of Certiorari for the petitioner

Richard Neil Myers upon the respondent by mailing three

copies each postage prepaid and air mail where addyessed to

Washington, D.C. this the ‘Wak day fe) ar my 1974

to counsel for the various parties listed below, and to counsel

for the Respondent listed below as follows in appliance with

Title 28, United States Code, Rule 33, Paragraphs I and II of

the Supreme Court in the United States of America:

11

RRP tet NET MRT ieee

Tindall, & Foster

1030 Houston Bar Center Bldg.

Houston, Texas 77002

Edward L. Lasof

420 Houston Bar Center

Houston, Texas 77002

Nie DEA ae

Phillips S. Greene, Esq

1717 South Shepherd

Houston, Texas 77019

‘

4 William L. Patton

4 Assistant to the Solicitory Gen.

‘ Department ot Justice

¥ Washington, D.C. 20530

Mr. F. Witcher McCullough, II

Assistant United States Attorney

$15 Rusk Avenue

Houston, Texas 77002

Mr. Robert Bark

i Solicitor General

H United States of America

: Depar*ment of Justice

Washington, D.C. 20530

ra S Wy -_

Buddy W. Gregory ?

bes 08

The Clerk will enter my appearance as counsel for the peti-

tion Richard Neil Myers.

MEO OPT SG ere ce nen een

By

Buddy W. Gregory

4

&

=

=

s

The Clerk is requested to notify counsel of action of the court

by means of air mail letter.

APPENDIX

IN THE UNITED STATES PISTRICT COURT

FOR THE SOUTHERN DiSTP}CT OF TEXAS

HOUSTON DIVIS. IN

UNITED STATES OF AMERICA ]

v. ] Criminal No. 73-H-376

KEITH STANFORD IRICK ]

DAVID PAUL KAY ]

RICHiARD NEIL MYERS ]

JOSEPH EDWIN PEEL ]

MEMORANDUM AND ORDER

In this criminal prosecution under 18 U.S.C. §111, each

defendant moves to dismiss the indictment for failure to

charge an offense. FED. R. CRIM. P. 12(a). The indictment

charges defendants “‘did forcibly assault, resist, Oppose, im-

pede, intimidate, and interfere with . . . a Special Agent

of the Drug Enforcement Administration, United States De-

partment of Justice.” Section 111 of Title 18 prohibits such

conduct when directed toward any person designated in 18

U.S.C. §1114. Section 1114 lists numerous groups of federal

employees and officers including “‘any officer or employee . .

. . of the Bureau of Narcotics and Dangerous Drugs.” Section

1114 does not name special agents of the Drug Enforcement

Administration.

Defendants contend the indictment must be dismissed

because it does not charge a crime proscribed by Sections

.11 and 1114. Because defendants’ position is valid, the

niotion to dismiss must be granted. Defendants also contend

that any such statutory construction and application in this

cas? would be unconstitutional. Having disposed of the case

on the defendants’ first ground of attack, it is not necessary

to reach the constitutional question.

The Bureau of Narcotics and Dangerous Drugs was abolish-

ed and the Drug Enforcement Administration was established

by Reorganization Plan No. 2 of 1973. 1973 U.S. Code

Cong. & Admin. News 912 (March 28, 1973). It became ef-

fective July 1, 1973 without Congressional action, 5 U.S.C.

§ 906. On July 10, 1973, pursuant to Executive Order 11727,

July 6, 1973, the Attorney General transferred the function

of the Bureau of Narcotics and Dangerous Drugs to the Drug

A-1

Bettie ite Boe

OUNCE, CE EP EO RLS A RAIS Mal Toman

Enforcement Administration by amending the Code of Fed-

eral Regulations. 28 Fed. Reg. 18380 (1973). Thus, the

Drug Enforcement Administration, its officers and em-

ployees, are the successors to the Bureau of Narcotics and

Dangerous Drugs, its officers and employees in function and

authority.

Nevertheless, the Congress has not yet amended § 1114 of

Title 18 to reflect this change. Consequently on August 27,

1973 when the incident made the basis of this indictment

took place, Sections 111 and 1114 proscribed assaults against

Bureau of Narcotics and Dangerous Drugs agents but not

against Drug Enforcement Administration agents. The ques-

tion posed by this case is whether 18 U.S.C. § §111, 1114

may be constitutionally construed to apply to employees of

a new federal agency which replaces an enumerated agency.

The alternative to such construction is the requirement of

congressional action before this inclusion can occur.

Both statutory history and a plain reading of Section 1114

demonstrate congressional intent to enact a limited, specific

statute. The Senate version of the original bill covered “ . .

. . any official or employee of the United States.” S.R. 535,

73rd Cong., 2nd Sess. (1934). The final statute, however,

specifically named the officials and employees covered. H.R.

1593, 73rd Cong., 2nd Sess. (1934). By subsequent amend-

ment, other groups of federal employees were added.

The statute remains very specific and explicit. The parti-

cular groups of federal officials and employees to be covered

are enumerated. In some cases, the statute includes all em-

ployees of a particular agency, e.g., the secret service. In

other cases all federal officials performing a particular func-

tion are covered, e.g., any immigration officer, Bennett v.

United States, 285 F.2d 567 (Sth Cir. 1960). In many in-

stances, only those employees of named de, artments who

perform particular functions are mentioned, e.g., any officer

or employee of the National Aeronautics and Space Admin-

istration directed to guard and protect property of the United

States under the administration and control of the National

Aeronautics and Space Administration.

The obvious purpose of the statute is to provide the pro-

tection of the federal courts to those certain officers. United

States v. Langione, 445 F.2d 636, 637 (Ist Cir. 1971).

Nevertheless, it is clearly not meant to sweep in every inter-

A-2

ete”

ference with any federal official. United States v. Johnson,

462 F.2d 423, 428 (3rd Cir. 1972).

More importantly in this instance, the statute does not

purport to cover successor agencies to those enumerated.

Instead, the Congress has regularly amended the statute to

reflect changes in agency organization and nomenciature. In

1970, for example, the statute was altered to reflect changes

from the Bureau of Narcotics to the Bu-eau of Narcotics and

Dangerous Drugs. This regular amendmc. , rather than in-

clusion in the statute of the words, “successor agencies or

officials” or words of like effect, evidence a congressional

intention that legislative amendment rather than judicial con-

struction is meant to be the proper means of updating the

statute. See Pierce v. United States, 314 U.S. 306 (1941).

A narrow, literal reading of the statute is consistent with

general principles of criminal law. See CLARK & MAR-

SHALL, LAW OF CRIMES §1.07 (7th ed. 1967); 21

AM. JUR. 2nd, Criminal Law §17 (1965); 22 C.Jj.S.,

Criminal Law §17 (1961). The maxim, expressio unius est

exclusio alterius (expression of one thing implies exclusion

of another) is appropriate here. A court should not depart

from the plain meaning of the statutory language. United

States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 96 (1820). Also

relevant is the principle that penal sanctions are to be strictly

construed. United States v. Standard Oil Company, 384 U.S.

224, 255 (1966). The definition of criminal conduct is a

legislative rather than judicial function, and the Courts should

be reticent to broadly read criminal statutes. United States

v. Kehoe, Crim. No. 73—H—213 (S.D. Texas Nov. 8, 1973).

The judicial construction and application of Section 1114

urged by the government raises serious constitutional ques-

tions which are not required to be answered.' Statutes are

to be construed so as to avoid a danger of unconstitutionality.

United States v. Harriss, 347 U.S. 612, 619 (1954).

The Court concludes that Section 1114 of Title 18 applies

only to those departments, agencies, and bureaus specifically

named therein. It cannot be construed to apply to empluyees

not named by the statute. This is true even if the group in

question is successor to employees named by the statute.

Accordingly, the Court holds that 18 U.S.C. § §111, 1114

do not prohibit the conduct alleged in the indictment. Unless

and until the Congress acts, the government must rely on the

A-3

ae Le ee an ett

state penal system to protect special agents of the Drug En-

forcement Administration.

In the instant case, the defendants’ Motions must be

GRANTED, and the indictment dismissed.

The Clerk shall file this Memorandum and Order and send

copies to all counsel.

DONE at Houston, Texas, this_4th_day of January, 1974.

y ————

:

SIGNED: James Noel

Judge

1. The same result may be constitutionally required. The common

law requirement of statutory definiteness and specificity is so fun-

damental as to be required by due process. Conally v. General Con-

struction Co,, 269 U.S, 285 (1926). Judicial construction enlarging

: a plainly written statute to include conduct not obviously described

; by ihe statute is constitutionally impermissible. Pierce v. United

States, 3:4 U.S. 306 (1941), Furthermore, application of new judi-

cial interpretations to pending criminal cases challenges the prohibi-

tion of ex post facto law. U.S. Const. art. 1, §10; Bouie v. City of

Columbia, 378 U.S. 347 (1964); Talavera v. Wainwright, 468 F.2d

1013 (Sth Cir. 1972).

ji EE AIA SFE ENN

(ae

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

UNITED STATES OF AMERICA |

Vv

j ]

KEITH STANFORD IRICK ]

DAVID PAUL KAY ]

]

]

fr

riminal No. 73-H-376

RICHARD NEIL MYERS

JOSEPH EDWIN PEEL

ORDER

On this day came on to be heard the Motions of each

defendant to Dismiss the Indictment for Failure to Charge an

Offense; and the Court, having considered each motion along

with the government’s response in opposition thereto, has

concluded, for reasons expressed in the Memorandum and

Order of even date, that each motion must be GRANTED;

accordingly,

It is hereby ORDERED and ADJUDGED that this in-

dictment and cause be DISMISSED in all respects as to

each and every defendant.

The Clerk shall file this Order and send a copy to each

defendant and to counsel for the government.

DONE at Houston, Texas, this_4th day of January, 1974.

Signed: James Noel

Judge

A-5

ie Tet

{SAREE EE 8 iF

. om ROO. &

UNITED STATES of America, Plaintiff-Appellant,

v.

Keith Stanford IRICK et al., Defendants-Appellees.

No. 74-1265

Summary Calendar.*

United States Court of Appeals,

Fifth Circuit.

Aug. 5, 1974.

Accused filed motions to dismiss indictment charging

them with assault of an officer of the Drug Enforcement

Administration. The United States District Court for the

Southern District of Texas, James L. Noel, Jr., J., 369 F.Supp.

594, granted the motions and the Government appealed. The

Court of Appeals, Ainsworth, Circuit Judge, held that under

statute providing for continuity of status, and function in

connection with executive reorganization., pecial agents of

Drug Enforcement Administration were witnin ambit of stat-

utes prohibiting assaults against officers of Bureau of Narcot-

ics and Dangerous Drugs,

Reversed.

1. Assualt and Battery 48

Obstructing Justice 7

Under statute providing for continuity of status and

function in connection with executive reorganizations, of-

ficers of Drug Enforcement Administration, which was suc-

cessor to Bureau of Narcotics and Dangerous Drugs, were

within ambit of statutes prohibiting assaults against officers

of the Bureau, even though statutes did not specifically refer

to the Drug Enforcement Administration. 5 U.S.C.A. §§

906(a), 907(a); 18 U.S.C.A. §§ 111, 1114.

A-6

PARON ren verse

Oe ns eet a er

2. Drugs and Narcotics 45

Fact that Congress had previously amended statute per-

taining to protection of federal officers and employees to

reflect changes caused by reorganization and had substituted

therein the Bureau of Narcotics and Dangerous Drugs for its

predecessor did not establish that amendment was ne :essary

to coverage of agents of the Bureau or that the statute was

inapplicable to officers of Drug Enforcement Administration,

which was the successor to the Bureau, due to absence of

specific reference to the Drug Enforcement Administration.

5 US.C.A. §§ 906(a), 907(a); 18 U.S.C.A. §5 111, 1114;

Comprehensive Drug Abuse Prevention and Control Act of

1970, § § 506, 508, 509, 21 U.S.C.A. § § 876, 878, 879.

3. Drugs and Narcotics 43

There was no constitutional impediment to inclusion of

officers and agents of Drug Enforcement Administration

within coverage of statute which pertained to protection of

certain federal officers and employees and which referred to

the Bureau of Narcotics and Dangerous Drugs, which was the

Drug Enforcement Administration’s predecessor, even though

the statute did not specifically refer to the Drug Enforcement

Administration. 5 U.S.C.A. § § 906(a), 907(a); 18 U.S.C.A.

§§ 111, 1114.

4. Assault and Battery <= 48

Obstructing, Justice 7

It is not an element of offense of assaulting, resisting or

impeding certain federal officers or employees that person

who commits one of the proscribed acts does so with knowl-

edge that his victim is a federal officer or that he knows the

specific name of the agency by which victim is employed. 18

U.S.C.A. 66 111, 1114.

5. Criminal Law o13.1(1)

Persons accused of a crime must be afforded fair warning

of prohibited conduct by statute which they are accused of

violating.

6. Criminal Law © 13(1)

Statute providing tor continuity of status and function in

A-7

connection with executive reorganizations is applicable to

criminal as well as to civil statutes. 5 U.S.C.A. § 907(a).

Appeal from the United States District Court for the

Southern District of Texas.

Before BROWN, Chief Judge, and THORNBERRY and

AINSWORTH, Circuit Judges.

AINSWORTH, Circuit Judge:

The question presented for decision is whether an in-

dictment charging assault of an officer of the Drug Enforce-

ment Administration is fatally defective because the pertinent

statutes, though they encompass assaults on “any officer or

employee of the Bureau of Narcotics and Dangerous Drugs,”’

do not specifically refer to the Drug Fnforcement Administra-

tion, the successor in the Department of Justice to the Bureau

of Narcotics and Dangerous Drugs.

Defendants Keith Stanford Irick, David Paul Kay,

Richard Neil Myers, and Joseph Edwin Peel were named in

an indictment which charged that on or about August 27,

1973, they “wilfully and by use of a deadly and dangerous

weapon, that is, a bayonet, did forcibly assault, resist, op-

pose, impede, intimidate, and interfere with . . . a Special

Agent of the Drug Enforcement Administration, United

States Department of Justice while [he] was engaged in the

performance of his official duties.”” The indictment charged

violation of 18 U.S.C. § § 111 and 2.!

Section 111 of Title 18, United States Code, prohibits,

inter alia, the forcible assault, intimidation, or interference

with “‘any person designated in [18 U.S.C. 5 1114] while

engaged in or on account of the performance of his official

duties . . .”* Section 1114 designates several categories

of federal officers and employees. Among the categories

designated is the Bureau of Narcotics and Dangerous Drugs,

the predecessor in the Department of Justice of the Drug

Enforcement Administration.’

The Bureau of Narcotics and Dangerous Drugs was es-

tablished by Reorganization Plan No. 2 of 1973. 1973 US.

Code Cong. & Admin.News 3554. The plan became effec-

A-8

tive Without congressional action on July 1, 1973, as provided

by 3 USC. § 906(a); and on July 10, 1973, pursuant to

Executive Order 11727, dated July 6, 1973, the Attorney

General transferred the functions of the Bureau of Narcotics

and Dangerous Drugs to the Drug Enforcement Administra-

tion by amending the Code of Federal R Regulations, 38 Fed.

Reg. 18380.* Thus, as the district court found, “the Drug

Entorcement Administration, its officers and employees, are

the successors to the Bureau of Narcotics and Dangerous

Drugs, its otficers and emplovees in function and authority.”

Section 1114, however, was not amended to reflect this

changeover from the Bureau ot Narcotics and Dangerous

Drugs to the Drug Enforcement Administration.

In the court below, each of the defendants moved to

dismiss the indictment for failure to charge an offense on the

ground that agents of the Drug Enforcement Administration

are not within the categories designated under 18 U.S.C. §

1114 and, thus, assaults on such agents are not encompassed

by 18 US.C. § 111. Notwithstanding its finding that the

Drug Enforcement Administration is the successor to the

Bureau of Narcotics and Dangerous Drugs, the district court

held that section 111 does not apply to assaults on Drug En-

forcement Administration agents because Congress failed to

amend section 1114 to substitute the Drug Enforcement Ad-

ministration for the Bureau of Narcotics and Dangerous

Drugs. Concluding tat section 1114 “applies only to those

departments, agencies, and bureaus specifically named there-

in,” tie court granted defendants’ motions and ordered the

indictment dismissed. The Government appeals pursuant to

18 U.S.C. § 3731.9

{1} The district court’s memorandum and order con-

cluding that the indictment should be dismissed omits re-

ference to 5 U.S.C. § 907(a), enacted September 6, 1966.°

Section 907(a), which provides for continuity of status and

function in connection with executive reorganizations, con-

trols the issues presented. It reads in full:

§907. Lftect on other laws, pending legal proceedings,

and unexpended appropriations. .

(a) A statute enacted, and a regulation or other action

made, prescribed, issued, granted, or performed in re-

spect of or by an agency or function affected by a

A-9

ROM PES WP

reorganization under this chapter, before the effective

date of the reorganization, has except to the extent

rescended, modified, superceded, or made inapplicable

by or under authority of law or by the abolition of a

function, the same effect as if the reorganizztion bad

not been made. However, if the statute. regulation, or

other action has vested the functions i the agency from

which it is removed under the reviganization plan, the

function insofar as it is to be exercised after the plan

becomes effective, shal! be deemed as vested in the

agency under which the function is placed by the plan.

(Emphasis added.)

The section’s legislative history reflects the clear mean-

ing of the statutory language, that is, the desire of Congress

not to leave a hiatus in existing law when a reorganization has

taken place. A House Report on the 1949 Reorganization

Act, the predecessor of the 1966 reorganization statute, ex-

plains that section 907 “contains saving provisions with re-

spect to the status, after a reorganization, of statutory pro-

visions, regulations, and other actions, and suits and other

proceedings, having a relation to any agency or function af-

fected by such reorganization.” H.R.Rep. No. 23, 82st Cong.,

Ist Sess., 1949 U.S.Code Cong.Serv. 1391. In addition, a

House Report commenting on a similar saving clause in the

original Reorganization Act of 1939 noted that the saving

clause “‘provides for the survival of . . . laws in connection

with reorganization.” H.P.Rep. No. 120, 76th Cong., 1st

Sess., 6 (1939).

Basically, when a reorganization takes place, section

907(a) continues in effect laws existing prior to the reor-

ganization. Any statute relating to an agency and enacted

before the effective date of the reorganization of that agency

has the same effect as if there had been no reorganization.

Thus, special agents of the Drug Enforcement Administration

fall within the ambit of section 111, by virtue of the provis-

ions of section 1114, in the same manner as did the special

agents of the Bureau of Narcotics and Dangerous Drugs.

[2] On appeal, defendants pose four basic arguments as

militating against the application of section 907(a) to their

situation. First, they assert that Congress has at times a-

mended 18 U.S.C. § 1114 to reflect changes caused by re-

A-10

Le ne ns anaes

organizations. They refer specifically to the amendment by

Congress, as part of the Comprehensive Drug Abuse Preven-

tion and Control Act of 1970, of section 1114 to substitute

the Bureau of Narcotics and Dangerous Drugs in the Depart-

ment of Justice for its predecessor, the Bureau of Narcotics

in the Treasury Department. 1970 U.S.Code Cong. & Admin.

News 1492, § 701(i)(1), Pub.L. 91-513, 84 Stat.1236.

We do not view this as evidence of congressional intent that

an amendment of 18 U.S.C. § 1114 was a precondition to

the coverage of agents of the Bureau of Narcotics and Dan-

gerous Drugs, to the disregard of 5 U.S.C. § 907(a). No

such implication can be garnered from the legislative history

of the Act.’ The provision amending section 1114 was merely

one provision of a general statutory program designed to deal

with drug abuse; and the amendment came almost two years

after the creation of the Bureau of Narcotics and Dangerous

Drugs, see Reorganization Plan No. 1 of 1968, 1968 U.S.Code

Cong. & Admin. News 4734. The hearings on the creation of

the Bureau of Narcotics and Dangerous Drugs, moreover, in-

dicate that amendment of section 1114 was not deemed nec-

essary to the continued coverage of that Bureau’s officers.

See Hearings Before a House Subcomm. on Government

Operations, 90th Cong., 2d Sess., at 64 (1968).8 Indeed, it

would ignore the impact of 5 U.S.C. § 907(a) to hold that

because Congress has on previous occasions made a conform-

ing amendment to section 1114 it must do so to protect

federal agents in reorganization situations.

[3,4] Defendants also assert, in a vague way, that there

iS a constitutional impediment to the inclusion of Drug

Enforcement officers and agents within the coverage of

section 1114. We perceive no such problem. We note, more-

over, that it is not an element of a section 111 offense that

the person who commits one of the proscribed acts does so

with the knowledge that his victim is a federal officer, see

e. g., United States v. Davis, 5 Cir., 1970, 423 F.2d 974,

975 n. 1, cert. denied, 400 U.S. 836, 91 S.Ct. 74, 27 L.Ed.

2d 69; United States v. Marcello, 5 Cir., 1970, 423 F.2d

993, 1010, cert. denied, 398 U.S. 959, 90 S.Ct. 2172, 26

L..Ed.2d 543; Burke v. United States, 5 Cir., 1968, 400

F.2d 866, 868, cert. denied, 395 U.S. 919, 89 S.Ct. 1771,

23 L.Ed.2d 237 (1969); United States v. Langone, 1 Cir.,

1971, 445 F.2d 636, cert. denied, 404 U.S. 915, 92 S.Ct.

A-11

ATER HAD Dae 4

226, 30 L.Ed.2d 189; United States v. Goodwin, 3 Cir.,

1971, 440 F.2d 1152, 1155; United States v. James, 9 Cir.,

1972, 464 F.2d 1228, 1230, cert. denied, 409 U.S. 1086,

93 S.Ct. 697, 34 L.Ed.2d 123,? and it is certainly not an

element of a section 111 offense that the defendant know

the specific name of the agency by which his victim is em-

ployed. “([W] hat little legislative history does exist indicates

only that Congress intended to create a federal forum for the

enumerated offenses instead of having to rely upon state and

local courts for the protection of federal officers.” United

States v. Goodwir, supra, 440 F.2d at 1155; see Ladner v.

United States, 358 U.S. 169, 174 n. 3, 79 S.Ct. 209, 212

n. 3, 3 L.Ed.2d 199 (1958) (Letter of January 3, 1934,

from Homer Cummings, Attorney General, to Senator Ash-

urst, Chairman of the Senate Committee on the Judiciary).

See also United States v. Langone, supra, 445 F.2d at 637.

Given the existence of 5 U.S.C. § 907(a) at the time of the

occurrence of the assault in this case, as well as the fact that

for conviction under section 111 a defendant need not have

knowledge of the official status of his victim, no constitu-

tional impediment can be claimed in the reorganization

statute’s application to these defendants.

[5] Defendants also place reliance on the doctrine that

penal statues must be construed strictly and contend that a

strict reading of section 1114 requires that it apply only to

those agencies specifically named therein. The strict con-

struction concept does not, however, require that other perti-

nent statutes, in this case section 907(a), be disregarded.

Furthermore, the doctrine is grounded in the principle that

persons accused of a crime must be afforded fair warning of

the prohibited conduct. See, e. g., United States v. Harriss,

347 US. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989

(1954); W. La Fave & A. Scott, Jr., Criminal Law 72 (1972).

It cannot be validly argued that defendants were not given

adequate notice of the prohibited conduct, that is, the as-

sault of a federal officer. Section 907(a) in no way changes

the nature of this conduct.

[6] Finally, defendants argue that section 907(a) was

intended to apply to civil statutes—not criminal statutes—and

to the functions of governmental agencies in reorganizations.

We can discern no such restriction of intent, either from the

A-12

A Ni MT OAR Ra OO it

plain meaning of the statute or from its legislative history.

We have considered all of defendants’ assertions and

find them to be without merit. We conclude that section 1114

includes the Drug Enforcement Administration in the same

manner that it encompassed the Bureau of Narcotics and

Dangerous Drugs. The indictment, therciore, as it charges

an ottense under section 111, is not defective.

*

Reversed.

FOOTNOTES

Rule 18, 5 Cuir.; see Isbell Enterprises, Inc. v. Citizens Casualty

Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part L.

. 18US.C. § 2 provides:

§ 2. Principals

(a) Whoever commits an offense against the United States or

aids, abets, counsels, commands, induces or procures its commis-

sion, is punishable as a principal.

. 18 U.S.C. § 111 reads in full:

S111. Assaultang, resisting, or impeding certain officers or em-

plovees

Whoever forcibiy assaults, resists, opposes, impedes, intimidates

or interferes with any person designated in section 1114 of this

title while engaged in or on account of the performance of his

official duties, shall be tined not more than $5,000 or imprisoned

not more than ten years, or both.

. The pertinent text of 18 U.S.C. § 1114 provides:

§ 1114. Protection of officers and employees of the United States

Whoever kills . . . any officer or employee .. . of the Bureau

of Narcotics and Dangerous Drugs . . . while engaged in the per-

tormance of his official duties . . . shall be punished as provided

under sections 1111] and 1112 of this utle.

\ regulation promulgated on July 1, 1973 by the Acting Admin-

istrator of the Drug Entoreement Administration used language

similar to that of 5 U.S.C. § 907(a):

All regulations or other action made, prescribed, issued, granted

or performed in respect of or by the agencies or functions af-

fected by section 1 of Reorganization Plan No. 2 of 1973 shall,

until rescinded, modified, superseded, or made inapplicable, have

the same effect as if the reorganization had not been made.

A-13

| MRSA NMG WA aia +

9.

The directive further provides:

Sec. 3. Enforcement officers

(a) All criminal investigators . . . are authorized to exercise all

of the powers of enforcement personnel granted by 21 U.S.C.

876, 878,879 ....

38 Fed.Reg. 18381.

The special agent who the indictment charges defendants with as-

saulting is a criminal investigator within the purview of the regula-

tions.

- 18 U.S.C. § 3731 provides in relevant part:

In a criminal case an appeal by the United States shall lie to a

court of appeals from a decision, judgment, or order of a district

court dismissing an indictment or information as to any one or

more counts, except that no appeal shall lie where the double

jeopardy clause of the United States Constitution prohibits further

prosecution.

The only other decision treating the question presented in this

case is United States v. Hasimar, 69 Cr. 58 (S.D.N.Y. May 25, 1970)

(unreported), which involved the establishment of the Bureau of

Narcotics and Dangerous Drugs. The court in Hasimar disposed of

the case in the same manner as the court below; and, like the court

below, failed to mention 5 U.S.C. § 907(a).

The legislative history is silent on the purpose of the amendment.

See 1970 U.S.Code Cong. & Admin.News 4566 ff.

In response to questions from Congressman Edwards, Phillip S.

Hughes, Deputy Director, Bureau of the Budget, and John H. Finla-

tor, Director, Bureau of Drug Abuse Control, Food and Drug Admin-

istration, Department of Health, Education and Welfare, testified

that reorganization would not affect the coverage of employees of

the Bureau of Narcotics and Dangerous Drugs under 18 U.S.C.

§ 1114.

Defendants do not challenge this principal of law.

A-14

e | ie

EI RRR ok ee TAG Sa Aa FREE

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

October Term, 1973

No. 74-1265

Summary Calendar

D. C. Docket No. CR-73-H-376

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

versus

KFITH STANFORD IRICK, et al.,

Detendants - Appellees.

Appeal from the United States District Court for the

Southern District of Texas

Before BROWN, Chief Judge, and

THORNBERRY and AINSWORTH, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the Southern

District of Texas. and was taken under submission by the

Court upon the record and briefs on file, pursuant to Rule 18:

ON CONSIDERATION WHEREOF, It is now here or-

dered and adjudged by this Court that the judgment of the

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

reversed.

August 5, 1974

A-15

A AS As ee.

esa a a entity 10

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

Edward W. Wadsworth 600 Camp Street

Clerk New Orleans, La. 70130

October 17, 1974

TO ALL COUNSEL OF RECORD

No. 74—1265 U.S.A. V. IRICK, ET AL

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition(s)* for rehearing, and no member of

the panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en

banc (Rule 35, Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 12) the petition(s) for rehearing en

banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for is-

st.2nce and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH

CLERK

Signed: By___Anne G. Parent

Deputy Clerk

ce: Mr. F. Witcher McCullough, III

Mr. William L. Patton

Mr. James R. Gough

Mr. Philip S. Greene

Mr. Harry L. Tindall

Mr. Buddy W. Gregory

Mr. Edward L. Lasof

*As to Richard Neil Myers and Joseph Edwin Peel

A-16

RPM term

CALENDAR NO. 568

73 CONGRESS seed REPORT

2d Session SENATE No. 535

PROVIDE PUNISHMENT FOR KILLING OR

ASSAULTING FEDERAL OFFICERS

Mar. 20 (calendar day, Mar. 22),1934.-Ordered to be printed

Mr. Stephens, trom the Committee on the Judiciary,

submitted the following

REPORT

[To accompany S. 2080]

The Committee on the Judiciary, having had under con-

sideration the bill (S: 2080) to provide punishment for killing

or assaulting Federal officers, reports the same favorably to

the Senate and recommends that the bill do pass, with the

following amendment:

On page 1, line 3, strike ous the word “‘assassinate”’ and

the commas preceding and following said word.

The purpose and need of this legislation are set out in the

following letter trom the Attorney General to the chairman

of this committec.

DEPARTMENT OF JUSTICE

Washington, D.C., January 3, 1934.

Hon. HENRY F. ASHURST,

Chairman Committee on the Judiciary,

United States Senate, Washington, D.C.

MY DEAR SENATOR: I wish again to renew the re-

commendation of this Department that legislation be enacted

making it a Federal offense forcibly to resist, impede, or

interfere with, or to assault or kill, any official or employee

ot the United States while engaged in, or on account of, the

performance of his official duties. Congress has already made

A-17

eh bee

ee ar Se

| eee cui

—_" * ae POO ee Ry LONE NOM NTO VOM Ow ha MANA ea Bey Ie

it a Federal offense to assault, resist, etc., officers or em-

ployees of the Bureau of Animal Industry of the Department

of Agriculture while engaged in or on account of the execu-

tion of their duties (sec. 62, C.C.; sec. 118, title 18, U.S.C.);

to assault, resist, etc., officers and others of the Customs and

Internal Revenue, while engaged in the execution of their

duties (sec. 65, C.C.; sec. 121, title 18, U.S.C.); to assault, re-

sist, beat, wound, etc., any officer of the United States, or

other person duly authorized, while serving or attempting to

serve the process of any court of the United States (sec. 140,

C.C.; sec. 245, title 18, U.S.C.); and to assault, resist, etc.,

immigration officials or employees while engaged in the per-

formance of their duties (sec. 16, Immigration Act of Feb.

5, 1917, c. 29, 39 Stat. 885; sec. 152, title S. U.S.C.). Three

of the statutes just cited impose an increased penalty when a

deadly or dangerous weapon is used in resisting the officer or

employee.

The need for general legislation of the same character, for

the protection of Federal officers and employees other than

those specifically embraced in the statutes above cited, be-

comes increasingly apparent every day. The Federal Govern-

ment should not be compelled to rely upon the courts of the

States, however respectable and well disposed, for the pro-

tection of its investigative and law-enforcement personnel; and

Congress has recognized this iact at least to the extent in-

dicated by the special acts above cited. This Department has

found need for similar legislation for the adequate protection

of the special agents of its division of investigation, several of

whom have been assaulted in the course of a year, while in

the performance of their official duties.

In these cases resort must usually be had to the local police

court, which affords but little relief to us, under the circum-

stances, in our effort to further the legitimate purposes of the

Federal Government. It would seem to be preferable, how-

ever, instead of further extending the piecemeal legislation

now on the statute books, to enact a broad general statute to

embrace all proper cases, both within and outside the scope

of existing legislation. Other cases in point are assaults on

letter carriers, to cover which the Post Office Department has

tor several years past sought legislation; and the scrious

wounding, a couple of years ago, of the warden of the Federal

Penitentiary at Leavenworth by escaped convicts outside the

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Federal jurisdiction. In the latter case it was possible to punish

the escaped convicts under Federal law for their, escape; but

they could not be punished under any Federal law for the

shooting of the warden. |

| have the honor, therefore, to enciose herewith a copy of

S. 3184, which was introduced at the request of this Depart-

ment in the Seventy-second Congress and to urge its reintro-

duction in the present Congress; and to express the hope that

it may receive the prompt and serious consideration of your

committee.

Respectfully,

HOMER CUMMINGS,

Attorney General.

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

Vv

FRANK HASIMAR AND

GENE HASIMAR, DEFENDANTS

69 CR. 58

MEMORANDUM

BONSAL, D. J.

A Grand Jury indictment charges that on or about Janu-

ary 10, 1969 the defendants assaulted three Special Agents of

the Bureau of Narcotics and: Dangerous. Drugs while they

were engaged in the performance of their official duties.

The indictment is based on Title 18, United States Code, § §

111 and, 1114. Section 111 makes it a crime to assault any

‘person. designated in § 1114 while engaged in the perfor-

mance of his official duties. Section 1114 designates various

officers and employees of the United States.

Reorganization Plan No. 1 of 1968 (28 U.S.C.A. § 309),

which became effective on April 8, 1968, established in the

Department of Justice a new bureau, the Bureau of Narcotics

and Dangerous Drugs, and transferred to it the functions pre-

viously carried on by the Bureau of Narcotics in the Treasury

Department, and by the Bureau of Drug Abuse Control in the

Department of Health, Education and Welfare. Section 4 of

the Reorganization Plan abolished the Bureau of Narcotics

in the Department of the Treasury.

Defendants move to dismiss the indictment, on the pe

that on the date of the alleged assault Special Agents of the

Bureau of Narcotics and Dangerous Drugs were not desig-

nated officers or employees under § 1114 and therefore §

111 does not: apply. Defendants therefore take the position

that the alleged assault, even if it occurred, was not a crime ,

under $111.

The government conceded at argument that the Agents

named in the indictment had been Agents of the old Bureau

of Narcotics and not designees of the Secretary of H.E.W.

in the old Bureau of Drug Abuse Control. The government

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contends, however, that the Reorganization Plan was merely

a merger within the Department of Justice of functions pre-

viously carried on in the Treasury Department and in H.E.W.,

and that it was the intention of Congress to afford the same

protection to the Agents of the new Bureau that they had

previously enjoyed.

Section 111, being a criminal statute, must be strictly

construed, United States v. Resnick, 299 U.S. 207 (1936).

Strictly construed, §111 applies only to Federal officers

designated in §1114. Turning to §11 14, the only applicable

provision is “any officer or employee . . . of the Bureau of

Narcotics.” At the time of the assault alleged in the indict-

ment, the Bureau of Narcotics had been abolished.

While the Congress undoubtedly intended to have the pro-

visions of $1114 apply to officers and employees of the

newly created Bureau of Narcotics and Dangerous Drugs, it

failed to do so. Therefore, at the time of the alleged assault,

the Agents were not designated employees under § 1114, and

the indictment does not state a crime under § 111.

Accordingly, the defendants’ motion to dismiss the indict-

ment is reluctantly granted. It is hoped that the government

will take a prompt appeal, and, perhaps more importantly,

that the Congress will take prompt action to amend § 1114 to

specifically designate officers and employees of the Bureau

of Narcotics and Dangerous Drugs.

Settle order.

SIGNED: | DUDLEY B. BONSAL

U.S.D.J.

DATED: New York, N.Y.

May 25, 1970

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