HILL, Circuit Judge.
Appellant was convicted of violating 18 U.S.C. § 111, which provides: "Whoever forcibly 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 guilty of an offense against the laws of the United States. Appellant assaulted Internal Revenue Service agents (federal officers designated in 18 U.S.C. § 1114) during his arrest on charges of misdemeanor tax law violations. On appeal he contends the jury was given erroneous instructions concerning his defense of self-defense.
On the afternoon of February 15, 1974, a warrant was issued for appellant's arrest, and IRS special agents W. L. "Vick" Vickers, Gerry Sparks, and Derral Thomas went to Casper, Wyoming, to effect the arrest. They had reason to believe appellant would be at the Ramada Inn in Casper attending a meeting of an organization known as the Wyoming Patriots. Agent Vickers had become acquainted with appellant through his investigation of appellant's tax law violation and through his investigation of the Wyoming Patriots. Their prior meetings had been cordial, and appellant had met with Vickers whenever he was requested to do so. Appellant had examined Vickers' credentials, including a pocket commission and a badge.
The agents arrived at the Ramada Inn at about 6:15 p.m., but they did not see appellant. During the evening they drove by his house, saw no lights, and assumed he was not at home. They returned to the Ramada Inn parking lot to wait.
At about 10:00 p.m. the agents saw appellant and a young woman (appellant's sister) standing outside the lounge entrance to the hotel. Appellant was facing the building. Vickers walked in front of appellant; the other two agents came up behind him. Appellant and Vickers exchanged greetings and shook hands. According to Vickers, appellant said something about Vickers' missing a big meeting inside. Vickers told appellant he might miss one too because he
They went only a few steps before appellant jerked his right arm free and pulled a spray cannister from his pocket. He struggled and succeeded in spraying Vickers and Thomas with what they feared was mace. Vickers hit appellant in the face while Sparks and Thomas wrestled him to the ground. Thomas put his knee on appellant's throat and quickly subdued him. After he was in the car appellant said, "At least I got even with you, Vick." Appellant was taken to the hospital for observation and then to the police station.
The spray used by appellant was liquid red pepper, which can cause sneezing, watery eyes, and nausea if taken directly into the eyes, nose, or mouth. It had little effect on either agent in this case.
According to appellant's testimony, because of the friendly greeting and their previously friendly relationship, he thought Agent Vickers was joking when he said he was under arrest. Then, he suddenly found himself being grabbed from behind by two strange men. He testified he was unaware his sister had departed and believed he was acting in defense of her, in self-defense, and in defense of Vickers. He claimed he sprayed Vickers by accident while attempting to spray the two who grabbed him from behind. Agents Sparks and Thomas admitted they never identified themselves. Appellant emphasized that he had been cooperative with Vickers previously and that if he had known who was attempting to subdue him he would not have resisted. Appellant testified it all happened so fast that his actions were merely reflexive self-defense. Although he knew Vickers was an IRS agent, appellant testified he did not know Vickers had authority to make arrests. He had not seen Vickers for two months and did not know if he was still with the IRS. Appellant said he had mail-ordered the spray cannister for use in self-defense because he was not a good fighter. He had never used it before and did not know what it would do.
Appellant dismissed his attorney at the time of trial and represented himself. He made use of his attorney's efforts, however, by submitting his proposed jury instructions and objecting to those given by the court. This preserved for appeal appellant's contention that the trial court's instructions on the issue of self-defense were inadequate because they did not mention the burden of proof. Appellant contends they were ambiguous as to where the burden of proof lay and permitted the jury to infer that the burden of proving self-defense was on the defendant. The trial court did give a general instruction that the burden was on the prosecution to prove the defendant's guilt beyond a reasonable doubt and that the burden never shifted to the defendant. We must consider the instructions in their entirety. See United States v. Smaldone, 484 F.2d 311 (10th Cir. 1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469.
There are a number of cases emphasizing the importance of avoiding confusion as to the burden of proof when an affirmative defense such as entrapment, insanity, or self-defense is asserted. In this circuit we have the benefit of the dissenting opinion by Judge Huxman in Forakis v. United States, 137 F.2d 581 (10th Cir. 1943). Self-defense was asserted in a murder case, and the trial court failed to instruct on the burden of proof in the self-defense instruction. The majority opinion refused to consider defendant's charge of error because it had not been presented to the trial court. Judge Huxman dissented on the ground the instruction constituted plain error noticeable for the first time on appeal. He stated:
137 F.2d at 583 (emphasis added).
This court also has indicated, in regard to the affirmative defense of insanity, that once a defendant introduces evidence raising a triable issue of fact on his theory of defense, the jury should be instructed that the standard of proof beyond a reasonable doubt applies to the affirmative defense. Otney v. United States, 340 F.2d 696 (10th Cir. 1965).
Two cases from the Ninth Circuit are closely in point. In DeGroot v. United States, 78 F.2d 244 (9th Cir. 1935), self-defense was asserted in defense of a murder charge. The court of appeals found the self-defense instruction confusing as to the burden of proof. A general instruction on the burden of proof beyond a reasonable doubt had been given. The court held:
78 F.2d at 253. Notaro v. United States, 363 F.2d 169 (9th Cir. 1966), involved the affirmative defense of entrapment. The court found the entrapment instruction permitted misinterpretation by the jury of the standard of proof to be applied to the defense. The court said:
363 F.2d at 176. Accord, Pratti v. United States, 389 F.2d 660 (9th Cir. 1968).
From these cases the importance of avoiding any confusion concerning the burden of proof on an affirmative defense is apparent. The inclusion of a specific statement of the burden of proof in the defense instruction is preferable. Its omission, however, is not reversible error per se. The question is whether the instructions, taken as a whole, adequately informed the jury that prosecution's burden of proof beyond a reasonable doubt applied to defendant's affirmative defense. We believe the instructions given in this case fall short of the standard. The relevant instructions follow:
The equivocal language used here is undesirable in jury instructions. The jury was not told in what circumstances or on what state of the evidence they should acquit the defendant. The language used is so ambiguous that it could permit the jury to infer that the burden of proof on the issue of self-defense was on the defendant. Moreover, it suggests that the burden is on the defendant. The jury was instructed that "the defendant has raised the defense of self defense." They were then instructed that they were "to consider" whether he acted reasonably under the circumstances. This instruction, without more, could easily be taken to mean that since the defendant raised the issue, it is his burden to prove it to the jury's satisfaction.
The trial court's choice of language is understandable. Instruction No. 12 is taken virtually verbatim from the Supreme Court's opinion in United States v. Feola, 420 U.S. 671, 686, 95 S.Ct. 1255, 1264, 43 L.Ed.2d 541 (1975). In Feola the Court held that knowledge the victim is a federal officer is not an essential element of the government's case under 18 U.S.C. § 111. Therefore, the defendant's knowledge of the victim's official status ordinarily is irrelevant. The statement incorporated into the instructions was an explanation that the Court's holding did not imply "that the defendant's state of knowledge is never a relevant consideration under § 111." It is relevant when the defendant denies having knowledge and asserts he acted in self-defense. The Court was providing guidance for a possible future case but was not intending to recommend a jury instruction.
When a defendant has presented sufficient evidence to warrant an instruction on the theory of self-defense, the elements of the defense should be fully defined. Under § 111 the instruction should include, in substance, a statement that if the defendant had no knowledge of the officer's identity and reasonably believed he was the subject of a hostile attack against his person, he was entitled to use reasonable force in his defense. And unless the government has established beyond a reasonable doubt that the defendant did not act in self-defense, the jury should find him not guilty.
We are not saying the burden of proof should be reiterated in each separate instruction. In the case of an affirmative defense, however, the potential for misinterpretation is too great to permit ambiguity. An affirmative defense admits the defendant committed the acts charged, but seeks to establish a justification or excuse. In the absence of clear instructions, it is not unlikely that the jury would infer that the government has borne its burden and that it is up to the defendant to establish his justification. This is contrary to the standard of proof beyond a reasonable doubt on all elements of the offense; the defense of self-defense is directed toward negating the element of criminal intent. The best policy is summarized in Notaro v. United States, supra at 175:
We have read all the instructions given in this case and are left with the impression the jury could have inferred that the burden of proof on the issue of self-defense was on the defendant or that it required