MEMORANDUM AND ORDER
TROUTMAN, District Judge.
Defendant operates F. R. & S. Landfill in Exeter Township, Berks County, Pennsylvania. On April 26, 1978, Deputy United States Marshal James Duross entered defendant's property with a warrant authorizing a search for samples of water and effluent suspected of being illegally discharged
During the next fifty minutes the search party engaged in various negotiations with the defendant to resolve their differences. The marshal drove his car to a higher point on the landfill several times to communicate by radio with his superiors in Philadelphia. Subsequently, the search party decided to commence the search and began to drive down an unpaved road out of the landfill area enroute to an adjacent area described in the search warrant. Waving his arms, defendant ran out into the middle of the road and motioned the vehicles, including the marshal's, over to the side of the road. The search party complied with defendant's demands. At that point defendant ordered an employee, David Hart, to position a pickup truck across the exit road, thus preventing the marshal's progress. During the late morning defendant's employees moved the truck several times to permit the ingress and egress of various vehicles, including refuse trucks and on one occasion the car of a state trooper. After each movement the truck was returned to its position across the road. At one point, defendant told Peter Bronner, a DER inspector and investigator, that the purpose of blocking the vehicles was to guarantee that he, Peifer, would be able to tow them out. At 12:45 P.M., approximately two hours after the marshal had served defendant with the warrant, he arrested defendant. The pickup truck was then moved out of the way and the search party continued to contiguous areas to begin sampling and tests.
After a six-day trial a jury convicted defendant of knowingly and willfully obstructing, resisting and opposing an officer of the United States in his service and execution of judicial process of a United States magistrate in violation of 18 U.S.C. § 1501. Defendant now moves for judgment of acquittal notwithstanding the verdict, and in the alternative for a new trial, contending that the Court erred in denying the defendant's pre-trial motions, erred in several evidentiary rulings and alleging that the verdict was contrary to the weight of the evidence.
Prior to trial defendant moved for a bill of particulars, in which he demanded names and addresses of persons present at the place of the incident and during a conversation between the defendant and "the victim", the make and model of the vehicles placed on the road, and the "exact nature of the inquiry or investigation by the Government upon which it predicated its answers and representations". Defendant also moved for the government's witness list, "for notice by the government of the intention to use evidence"
The purpose of granting a bill of particulars under Rule 7(a) of the Federal Rules of Criminal Procedure is
Denial of the bill of particulars could not have adversely affected defendant's ability to prepare his defense adequately. He was present most of the time that the marshal stayed on the property and was obviously present when he ordered the pickup truck placed across the road. Defendant saw who was there and heard what was said. In light of the information provided under Rule 16 and gleaned from the probable cause hearing, the factual details and legal issues which arose at trial could hardly have been surprising.
Defendant also filed a pre-trial motion alleging violations of Fed.R.Crim.P. 5(a) and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957) and urging dismissal of the information because of the government's "(f)ailure to obtain proper venue by taking the defendant to Philadelphia, Pennsylvania, rather than to the nearest United States Magistrate in Reading." Defendant's Memo at 2. The purpose of Rule 5(a) is to guarantee that the government does not use delay between arrest and an initial appearance to subject defendants to unwarranted or coercive interrogation. Mallory v. United States, supra at 453-54, 77 S.Ct. 1356, United States v. Gaines, 555 F.2d 618, 622 (7th Cir. 1977). Where delay is not in fact used for that purpose, no prejudice results and Mallory is irrelevant. United States v. Grandi, 424 F.2d 399, 402-03 (2d Cir. 1970), cert. denied, 409 U.S. 870, 93 S.Ct. 199, 34 L.Ed.2d 121 (1971).
In the case at bar defendant alleges that the "additional delay in awaiting transportation to Philadelphia was calculated to deprive the defendant of his constitutional guarantees". Defendant's Memo at 2. Yet defendant does not show what prejudice resulted from the alleged delay or upon what constitutional rights this delay impinged. Defendant obtained his initial hearing before a United States magistrate a few hours after arrest. Bail was posted, and defendant was advised fully of the charges against him. Government's agents elicited no statements from defendant between the time of his arrest and initial hearing. Therefore, no prejudice resulted from selection of Philadelphia as the place to bring defendant before a magistrate.
Russell v. United States, 369 U.S. 749, 764, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962). Accordingly, defendant's motion for a judgment of acquittal on the basis of improper pre-trial rulings will be denied.
Defendant also predicates the present motion on several evidentiary errors. Specifically, defendant cites as error admission of "irrelevant" and "highly prejudicial" testimony by Maureen Brennan, an EPA attorney, and Peter Bronner regarding defendant's interference with their attempts to conduct the search. The lack of a relationship between the "evidence they presented and a matter properly provable in this case" and the implication that they "were cloaked with the authority of the United States Marshall (sic)", supposedly provide the basis upon which the Court should have excluded this testimony. Both Brennan and Bronner were eyewitnesses to the res gestae. Certainly their testimony, as with all incriminating evidence, was highly prejudicial to defendant. But the critical question is whether the admitted evidence is unfairly prejudicial. In light of its relevance and probity this evidence can hardly be considered unfair.
Defendant also challenges the Court's refusal to charge the jury that "(i)f you the jury find that (the marshal) did not authorize anyone to execute the search warrant you must find the Defendant Donald L. Peifer not guilty". Ordinarily, a defendant is entitled to have the jury instructed on the theory of his defense even though the evidence may be "weak, insufficient, inconsistent or of doubtful credibility". United States v. Lehman, 468 F.2d 93, 108 (7th Cir.), cert. denied, 409 U.S. 967, 93 S.Ct. 273,
Anticipating a situation of this type, Congress passed 18 U.S.C. § 3105, which provides that
Accordingly, the contemplated search was valid as one directed by the marshal, United States v. Kennedy, 457 F.2d 63 (10th Cir.), cert. denied, 409 U.S. 864, 93 S.Ct. 157, 34 L.Ed.2d 112 (1972), United States v. Joseph, 174 F.Supp. 539 (E.D.Pa.1959), aff'd, 278 F.2d 504 (3d Cir.), cert. denied, 364 U.S. 823, 81 S.Ct. 59, 5 L.Ed.2d 52 (1960), Palmer v. United States, 92 U.S.App.D.C. 103, 203 F.2d 66 (1953), Nuckols v. United States, 69 U.S.App.D.C. 120, 99 F.2d 353, cert. denied sub nom. Floratos v. United States, 305 U.S. 626, 59 S.Ct. 89, 83 L.Ed. 401 (1938), and because technical expertise was required to execute the warrant, the marshal's use of assistance did not vitiate the search or affect his status as the named executing officer. Romero v. Squier, 133 F.2d 528 (9th Cir.), cert. denied, 318 U.S. 785, 63 S.Ct. 982, 87 L.Ed. 1152 (1943). The Court properly refused to charge the jury as requested by defendant.
Next, defendant labels the jury charge as conflicting, misleading, and "substantially" confusing. The Court instructed the jury, in part, as follows:
Defendant contends that the jury could have construed the second instruction to suggest that defendant's failure to take the stand constituted evidence of a "weaker and less satisfactory" case. The first statement was a reminder to the jury of defendant's Fifth Amendment right; the second was a charge requested by defendant himself. If, indeed, the jurors connected these two thoughts, the Court's repeated references to a defendant's right to refuse to testify and produce evidence certainly clarified any ambiguity which defendant's requested instruction may have created.
Defendant also considers another pair of instructions confusing. The Court instructed the jury that
Defendant complains that the jury could have interpreted the italicized portion of the second instruction to mean "that if an act is illegal, the Defendant is presumed to know the action was illegal". Defendant's Supplemental Brief at 19. Hopefully the jury did import that meaning to these words, for it is a correct statement of law. Every person is presumed to know the law. United States v. Murdock, 290 U.S. 389, 393-96, 54 S.Ct. 223, 78 L.Ed. 381 (1933), Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68, 30 S.Ct. 663, 54 L.Ed. 930 (1910), Williamson v. United States, 207 U.S. 425, 453, 28 S.Ct. 163, 52 L.Ed. 278 (1907). Defendant further postulates that from this instruction the "reasonable juror could easily have presumed that the defendant knew James Duross was a United States Marshall (sic)". Defendant's Supplemental Brief at 19. The flaw in this argument is that defendant's knowledge of Duross' status was a question of fact, not law. The Court did not instruct the jury that defendant was presumed to know the facts.
Additionally, the first instruction, which defendant considers prejudicially confusing in light of the later one, deals with mistake of fact; the second instruction, mistake of law. As stated, both instructions were clear and accurate. The jury was instructed properly, Carlton v. United States, 395 F.2d 10, 12 (9th Cir. 1968), cert. denied, 393 U.S. 1030, 89 S.Ct. 642, 21 L.Ed.2d 574 (1969), and defendant's motion for judgment of acquittal on this ground will be denied.
Of the evidentiary errors asserted only defendant's challenge to the Court's refusal to hear testimony concerning the validity of the search warrant requires further comment. A defective warrant is no defense to a charge of resisting execution thereof. That issue is resolved through a later legal mechanism, the suppression hearing. United States v. Ferrone, 438 F.2d 381, 389-90 (3d Cir. 1971), cert. denied, 402 U.S. 1008, 91 S.Ct. 2188, 29 L.Ed.2d 430 (1971).
Defendant next attacks the verdict as contrary to the weight of and unsupported by the evidence. As the verdict winner, the government is entitled to have all the evidence, direct and circumstantial, viewed in a light most favorable to the government. Conflicting evidence may not be weighed; credibility of witnesses may not be evaluated. All reasonable inferences must be construed in favor of the government. United States v. Downen, 496 F.2d 314, 318 (10th Cir. 1974), United States v. Mancini, 396 F.Supp. 75, 76 (E.D.Pa.1975), United States v. Holland, 378 F.Supp. 144, 148 (E.D.Pa.), aff'd, 506 F.2d 1050 (3d Cir. 1974), cert. denied, 420 U.S. 994, 95 S.Ct. 1433, 43 L.Ed.2d 676 (1975). To prove the offense charged, the government was required to establish that the officer was attempting to execute judicial process of a United States magistrate, that the defendant obstructed, resisted or opposed the officer, and that the defendant acted knowingly and willfully. See 18 U.S.C. § 1501. The government did not need to show that defendant threatened or performed an act of violence, Miller v. United States, 230 F.2d 486 (5th Cir. 1956), United States v. McDonald, 26 Fed.Cas. 1074, 1077 (C.C.D. Maine 1879) (No. 15,667), only that defendant or his agent performed an act which delayed or interfered with the service or execution of process, United States v. McDonald, supra at 1077, for acts of an agent or employee commanded by defendant are chargeable to defendant as if he himself had performed the acts. United States v. Wise, 370 U.S. 405, 417, 82 S.Ct. 1354, 8 L.Ed.2d 590 (1962), United States v. Deaton, 563 F.2d 777 (5th Cir. 1977).
Defendant contends that the government did not establish each element. According to defendant, the marshal testified that he never intended to execute the search warrant himself, that he authorized no one else to execute it, and therefore defendant could not have interfered with execution. As noted above, this argument is without merit. Defendant's final attack upon the verdict concerns defendant's alleged lack of specific criminal intent. That is, the government did not establish that defendant acted willfully and knowingly. Defendant claims that he did not know who the marshal was and therefore could not have intended to obstruct service. Testimony of the marshal himself contradicts these representations. Defendant, in fact, concedes that he greeted Duross with the words "So this is the big marshal". Defendant also received the warrant personally from the marshal. From this action alone defendant was on alert to the fact that Duross was a Federal officer. Defendant also refused to examine the marshal's identification and later told the marshal, "If you take samples on my property, you will not get off with them". From this testimony the jury reasonably could have concluded that defendant knew who Duross was and knowingly prevented execution of the warrant. From defendant's gesticulations, actions and words the jury could have reasonably concluded defendant acted willfully. Testimony of Maureen Brennan, Peter Bronner and David Hart supports these conclusions. Where, as here, substantial evidence supports the verdict, it must be sustained. United States v. Trotter, 529 F.2d 806, 811 (3d Cir. 1970).
Lastly, defendant assigns as error the Court's refusal to declare a mistrial after government counsel, in his closing remarks to the jury, supposedly indicated his own personal belief in defendant's guilt. Government counsel remarked, "I ask that you consider all the evidence and return here with a just verdict. In this case I
Having summarized the elements of the offense and evidence proffered as proof, counsel had the clear purpose of emphasizing to the jury that the evidence, not his judgment, supported a guilty verdict. See United States v. Munford, 431 F.Supp. 278, 289 (E.D.Pa.1977), in which the court found no prosecutorial excess when counsel stated
This is quite unlike the situation where the prosecutor's statements to the jury contained extrinsic evidence, United States v. Schwartz, 325 F.2d 355 (3d Cir. 1963), matters asserted as fact but not in evidence, Dunn v. United States, 307 F.2d 883 (5th Cir. 1962), or implications that the defendant withheld probative, inculpatory evidence, McMillan v. United States, 363 F.2d 165 (5th Cir. 1966). Likewise, insinuating that defendant is guilty of another unspecific
Henderson v. United States, 218 F.2d 14, 19 (6th Cir.), cert. denied, 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253 (1955). See also United States v. Somers, 496 F.2d 723, 740 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974), United States v. Benson, 487 F.2d 978, 981 (3d Cir. 1973), United States v. Schartner, 426 F.2d 470, 477 (3d Cir. 1970). Government counsel in the case sub judice clearly expressed himself in terms based on the evidence and did not suggest to the jury that inculpatory evidence not introduced at trial also established defendant's guilt. Defendant's motion for judgment of acquittal will be denied.
Defendant also moves for a new trial on the same grounds. The Court may grant a new trial "if required in the interest of justice". Fed.R.Crim.P. 33. Having found that substantial evidence supports the verdict and that the Court committed no prejudicial errors, we find no miscarriage of justice. Accordingly, defendant's motion for a new trial will be denied.
Id. at 390.
Counsel later remarked that:
Counsel's final statements to the jury are set out in the text.