Affirmed by an equally divided Court January 6, 1958.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The petitioner was convicted in the United States District Court for the Southern District of Mississippi of assaulting two federal officers with a deadly weapon in violation of former 18 U. S. C. § 254.
There is no constitutional issue presented. The question for decision is as to the construction to be given former § 254 in the circumstances alleged by the petitioner. Did Congress mean that the single discharge of a shotgun would constitute one assault, and thus only one offense, regardless of the number of officers affected, or did Congress define a separate offense for each federal officer affected by the doing of the act? The congressional meaning is plainly open to question on the face of the statute, which originated as § 2 of the Act of May 18, 1934. 48 Stat. 780. The Government does not seriously contend otherwise, but emphasizes that the legislative history shows that the statute was designed to protect federal officers from personal harm, or the threat of personal harm, in the performance of their duties, or on account of the performance of their duties. From this premise, the Government argues that there must be an offense for each officer who is put in immediate apprehension of personal injury, i. e., assaulted, and that each officer thus defines the unit of prosecution. The position is summed up in
However, we are unable to read the legislative history as clearly illumining the statute with this meaning. The history is scant, consisting largely of an Attorney General's letter recommending the passage of the legislation,
Moreover, an interpretation that there are as many assaults committed as there are officers affected would produce incongruous results. Punishments totally disproportionate to the act of assault could be imposed because it will often be the case that the number of officers affected will have little bearing upon the seriousness of the criminal act. For an assault is ordinarily held to be committed merely by putting another in apprehension of harm whether or not the actor actually intends to inflict or is capable of inflicting that harm.
It is therefore apparent that § 254 may as reasonably be read to mean that the single discharge of the shotgun would constitute an "assault" without regard to the number of federal officers affected, as it may be read to mean that as many "assaults" would be committed as there were officers affected. Neither the wording of the statute nor its legislative history points clearly to either meaning. In that circumstance the Court applies a policy of lenity and adopts the less harsh meaning. "[W]hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose
It follows that the petitioner is entitled to an opportunity to sustain his allegation that his conviction of two assaults rested upon evidence that the wounding of the two officers resulted from a single discharge of the gun.
The judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE CLARK, dissenting.
By what to me is a dubious route, permitting a collateral attack to be made on this old judgment under § 2255
Nearly fourteen years ago, two federal officers were ambushed and seriously wounded by Ladner when he shot them point-blank with a shotgun as they sat in the front seat of a vehicle transporting some prisoners arrested in a raid on an illicit distillery. He was convicted of an assault on each of the officers. Ladner contends that he fired only a single charge from the shotgun and is, therefore, guilty of only one offense, regardless of the number of officers assaulted.
The principal issue, as I see the case, is the procedural one under § 2255, namely whether the Court should allow this collateral attack on Ladner's sentence. This important question, both argued and briefed by the Government, is, I think, wrongly decided by the Court. These proceedings are by motion under § 2255 to correct the consecutive sentences of ten years imposed on each of Counts 2 and 3 of the indictment. Count 2 charges an assault on Officer James Buford Reed, while Count 3 charges one on Officer W. W. Frost. The record is unclear, as the Court points out, as to how many discharges of the shotgun Ladner fired into the vehicle. Hence a determination of that issue must be made by the trial court on remand of the case.
Clearly this is an error that should have been raised by appeal. It did not undermine the jurisdiction of the original trial court, for under the allegations of the indictment these counts clearly state separate offenses. It raises no constitutional issue. The history of § 2255 clearly reveals that such an attach was not authorized. Reference to United States v. Hayman, 342 U.S. 205 (1952), gives us a complete picture. The Judicial Conference of the United States proposed § 2255 to remedy the "practical problems that had arisen in the administration of the federal
It is clear that in enacting § 2255, Congress did not intend to enlarge the available grounds for collateral attack, but rather sought only to correct serious administrative problems that had developed in the exercise over the years of habeas corpus jurisdiction.
The Court today holds that the trial court may have committed an error of law which will require the reconstruction of the evidence as to the number of shots fired by Ladner. As I have indicated, this may require a retrial of this fourteen-year-old case. Here the indictment and judgment are admittedly regular on their faces. The dispute is entirely with the facts of the incident. The issue, therefore, is squarely governed by the principles of Sunal v. Large, 332 U.S. 174 (1947). That was a habeas corpus proceeding attacking a conviction admittedly obtained as a result of error of the trial court. As here, neither the jurisdiction of the trial court nor claimed constitutional violations were at issue. The Court, speaking through MR. JUSTICE DOUGLAS, said:
The history and language of § 2255 show that the same limitations are present in such proceedings and that they are equally jurisdictional. What was enacted by Congress to solve the practical problems created by the "great increases" in habeas corpus applications today becomes the tool by which prisoners can pry open their convictions on even broader grounds than were ever permitted theretofore. It appears entirely probable that a much greater administrative problem will result than confronted the courts before the enactment of § 2255.
The Court cites seven cases in which we decided "questions of statutory construction" although the questions were raised by "collateral attack upon consecutive sentences. . . ." But those cases only point up my position the more, i. e., that a collateral attack can be made only where the error in the sentence is apparent from the facts alleged in the four corners of the indictment or admitted by the parties. In five of the cases, i. e., In re Snow, 120 U.S. 274 (1887); Tinder v. United States, 345 U.S. 565 (1953); Gore v. United States, 357 U.S. 386 (1958); Prince v. United States, 352 U.S. 322 (1957), and Ebeling v. Morgan, 237 U.S. 625 (1915), the error in sentencing is apparent from the face of the indictment. In the remaining two cases, Bell v. United States, 349 U.S. 81 (1955),
However, even more surprising to me, as it runs counter to my understanding of efficient judicial administration, is the Court's statement that its holding today should not be considered as "intimating any view as to the availability of a collateral remedy in another case where that question is properly raised, and is adequately briefed and argued in this Court." I find no counterpart for such a handling in our precedents. Implicit therein is the suggestion that come another case where the point is "properly raised [and] adequately briefed and argued in this Court"
I do not reach the merits. The Congress, however, may correct that error of the Court. But the ad hoc manner in which it has today disposed of the case we shall have with us always—a precedent for others to follow.
"Whoever shall forcibly resist, oppose, impede, intimidate, or interfere with any person . . . [if he is a federal officer designated in § 253] while engaged in the performance of his official duties, or shall assault him on account of the performance of his official duties, shall be . . . imprisoned not more than three years . . . ; and whoever, in the commission of any of the acts described in this section, shall use a deadly or dangerous weapon shall be . . . imprisoned not more than ten years . . . ." 18 U. S. C. (1940 ed.) § 254.
"MY DEAR SENATOR:
"I wish again to renew the recommendation 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 of the United States while engaged in, or on account of, the performance of his official duties. Congress has already made it a Federal offense to assault, resist, etc., officers or employees of the Bureau of Animal Industry of the Department of Agriculture while engaged in or on account of the execution 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, resist, 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 performance of their duties (sec. 16, Immigration Act of Feb. 5, 1917, c. 29, 39 Stat. 885; sec. 152, title 8, 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, becomes increasingly apparent every day. The Federal Government should not be compelled to rely upon the courts of the States, however respectable and well disposed, for the protection of its investigative and law-enforcement personnel; and Congress has recognized this fact at least to the extent indicated 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 circumstances, in our effort to further the legitimate purposes of the Federal Government. It would seem to be preferable, however, 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 for several years past sought legislation; and the serious wounding, a couple of years ago, of the warden of the Federal Penitentiary at Leavenworth by escaped convicts outside the 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.
"I have the honor, therefore, to enclose herewith a copy of S. 3184, which was introduced at the request of this Department in the Seventy-second Congress and to urge its reintroduction in the present Congress; and to express the hope that it may receive the prompt and serious consideration of your committee.
See, for the legislative history, S. Rep. No. 535, 73d Cong., 2d Sess.; H. R. Rep. No. 1455, 73d Cong., 2d Sess.; 78 Cong. Rec. 8126-8127.