Certiorari Denied November 16, 1964. See 85 S.Ct. 261.
MOORE, Circuit Judge.
The five appellants appeal from a judgment of conviction entered upon a jury
Section 1114 includes "any officer or employee of the Federal Bureau of Investigation of the Department of Justice."
Appellants assert as their principal points (1) that proof of knowledge of the official capacity of the person assaulted is an essential element of the crime charged and that the trial court erred in refusing to submit the issue of knowledge to the jury; and (2) that there was no evidence that the agent was "engaged in * * * the performance of his official duties."
The necessity of establishing knowledge as a matter of law was met directly by the trial court in his charge wherein he stated:
Appellants rely primarily on a statement in Pettibone v. United States, 148 U.S. 197, 205, 13 S.Ct. 542, 546, 37 L.Ed. 419 (1892), wherein Mr. Chief Justice Fuller said, "[I]t is the official character that creates the offense, and the scienter is necessary." In United States v. Taylor, 57 F. 391, 392, 393 (C.C.E.D.Va. 1893), a district judge dismissed indictments which failed to allege "knowing that they were officers of the United States, engaged in performing duties imposed by laws of the United States" and said in a case involving an assault upon a federal officer, "In such cases the scienter is an essential ingredient of the offense." In Hargett v. United States, 183 F.2d 859 (5 Cir. 1950), the Fifth Circuit took cognizance of Pettibone and, Taylor and also reviewed cases in the Fifth, Sixth, Seventh and Eighth Circuits,
The court also relied upon the opinion in McNabb v. United States, 123 F.2d 848, 855 (6th Cir.), rev'd on other grounds, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1942), certiorari denied after
Many statutes creating crimes contain such requirements as "knowingly," "with knowledge," "intentionally" and "with intent." No such prerequisite has been written by Congress into section 111 although it could easily have made knowledge an essential ingredient. The meager legislative history suggests that in section 111 Congress merely sought to provide a federal forum for the trial of cases involving various offenses against federal officers in the performance of official duties. See Ladner v. United States, 358 U.S. 169, 174-177, 79 S.Ct. 209, 212, 213, 3 L.Ed.2d 199 (1958). 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." The reasoning in McNabb and Bennett is far more persuasive as to the proper construction to be placed upon section 111 than those cases which write the element of scienter into a statute which does not contain this requirement.
Appellants attack the sufficiency of the evidence that agent Foley was assaulted while engaged in the performance of his official duties. The record clearly establishes the agent's assignment by his superiors to be present at the funeral of Carmello Lombardozzi and to conduct a photographic and visual surveillance of such events as might there occur and of such persons present as might be the subjects of federal investigation. While so engaged, the agent was assaulted by appellants in front of the Church of the Immaculate Heart of Mary in Brooklyn, New York. The trial court in his charge fairly presented the factual question of whether the agent was engaged in official duty. The jury's verdict was determinative.
During cross-examination appellants sought to elicit the place of employment of an important Government witness. The trial court allowed extensive cross-examination but sustained an objection to a question seeking to ascertain whether the night club in which the witness was working as a bouncer was in New York City. Even on appeal appellants have not demonstrated the materiality or relevance of this information. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), supports the discretion of the trial court in deciding how far afield cross-examination should go. See United States v. Rich, 262 F.2d 415 (2 Cir. 1959).
Agent Foley's gun was received in evidence as the instrument used to inflict the serious skull fracture suffered by him. The gun was not unrelated to the crime and was not introduced solely to create prejudice but rather to show how such an injury could have been caused. Medical testimony was offered to establish the nature of the object required to inflict so severe a fracture, namely, an object such as a gun. The gun, therefore, had probative value and was properly admitted.
Appellants contend that the trial court should have declared a mistrial because some of the jurors had read newspaper articles which appellants claim were inflammatory and untrue. When the court was informed of the publication in the press of certain articles relating to the trial, he inquired as to whether any of the jury had seen or read the articles. Upon being advised that three of the jurors had seen such articles, the court proceeded to interrogate them as to possible prejudice or influence resulting therefrom. Satisfied
During the trial a photograph was shown to the witness Ferraioli to refresh his recollection. The trial court who characterized Ferraioli as an "unwilling witness" has broad discretion in passing upon appropriate trial procedures. He is in the best position to sense and evaluate the courtroom atmosphere and witness reluctance or hostility. The use of photographs and statements in connection with the examination of the witnesses Ferraioli and Ramsey under all the surrounding circumstances was proper.
The incident which appellants characterize as "improper and inflammatory remarks during his [the prosecutor's] summation" consisted of a question, "And where is Carmine Lombardozzi? Could the Government have brought forward Carmine —" At this point an objection was made and the Court said: "The defendants are not required to bring in any witnesses." Colloquy then ensued at the bench out of the presence of the jury. In such colloquy, defense counsel represented the rhetorical question to have been "Why didn't they call Carmine Lombardozzi?" The record does not substantiate this representation. The subject of the discussion was concluded by the Court instructing the jury that "the Government has a right to call any witnesses [sic] it pleases, and the defendants have a right to call any witnesses [sic] they please. But the defendants are not required to call any witnesses; that is their prerogative. They don't have to prove their innocence in the case." This was an accurate statement of the law. Since the prosecutor's abortive comment as to Carmine Lombardozzi was cut short by objection and never finished, it cannot by the most speculative inference be twisted into an accusation that appellants were derelict in not producing and calling him.