Respondent and others were convicted in a jury trial of
violating 18 U.S.C. § 111 for having assaulted federal officers
(here undercover narcotics agents) in the performance of their
official duties, and of conspiring to commit that offense, in
violation of the general conspiracy statute, 18 U.S.C. § 371. The
trial court had instructed the jurors that, in order to find any of
the defendants guilty on either the conspiracy count or the
substantive count, they were not required to conclude that the
defendants were aware that their quarry were federal officers. The
Court of Appeals approved the instructions on the substantive
charges but, in reliance on
United States v. Crimmins, 123
F.2d 271,. and its progeny, reversed the conspiracy convictions on
the ground that the trial court had erred in not charging that
knowledge of the victim's official identity must be proved in order
to convict on the § 371 charge.
Held:
1. Section 111, which was enacted both to protect federal
officers and federal functions and to provide a federal forum in
which to try alleged offenders, requires no more than proof of an
intent to assault, not of an intent to assault a federal officer;
and it was not necessary under the substantive statute to prove
that respondent and his confederates knew that their victims were
federal officers. Pp.
420 U. S.
676-686.
2. Where knowledge of the facts giving rise to federal
jurisdiction is not necessary for conviction of a substantive
offense embodying a
mens rea requirement, such knowledge
is equally irrelevant to questions of responsibility for conspiring
to commit the offense. Thus, in this case, where proof of knowledge
that the intended victims were federal officers was not necessary
to convict under § 111, such knowledge did not have to be proved to
convict under § 371. Pp.
420 U. S.
686-696.
(a) There is nothing on the face of § 371 that would appear to
require a greater degree of knowledge of the official status of the
victim than is required in the case of the substantive statute, and
at least two decisions repudiate respondent's contentions to
the
Page 420 U. S. 672
contrary,
In re Coy, 127 U. S. 731;
United States v. Freed, 401 U. S. 601. Pp.
420 U. S.
687-688.
(b) The principle of the
Crimmins case,
supra,
that to permit conspiratorial liability where the conspirators were
ignorant of the federal implications of their acts would be to
enlarge their agreement beyond its terms as they understood them,
has no bearing on a case like the instant one where the substantive
offense, assault, is not of the type outlawed without regard to the
intent of the actor to accomplish the result that is made criminal.
Nor can it be said that the acts contemplated by the conspirators
are legally different from those actually performed solely because
of the official identity of the victim. Pp.
420 U. S.
688-693.
(c) Imposition of a strict "anti-federal"
scienter
requirement has no relationship to the purposes of the law of
conspiracy, which are to protect society from the dangers of
concerted criminal activity and to identify an agreement to engage
in crime as sufficiently threatening to the social order to warrant
its being the subject of criminal sanctions regardless of whether
the crime agreed upon is actually committed. Pp.
420 U. S.
693-694.
486 F.2d 1339, reversed.
BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, MARSHALL, POWELL, and REHNQUIST,
JJ., joined. STEWART, J., filed a dissenting opinion, in which
DOUGLAS, J., joined,
post, p.
420 U. S.
696.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This case presents the issue whether knowledge that the intended
victim is a federal officer is a requisite for the crime of
conspiracy, under 18 U.S.C. § 371, to commit
Page 420 U. S. 673
an offense violative of 18 U.S.C. § 111, [
Footnote 1] that is, an assault upon a federal
officer while engaged in the performance of his official
duties.
Respondent Feola and three others (Alsondo, Rosa, and Farr) were
indicted for violations of §§ 371 and 111. A jury found all four
defendants guilty of both charges. [
Footnote 2] Feola received a sentence of four years for
the conspiracy and one of three years, plus a $3,000 fine, for the
assault. The three-year sentence, however, was suspended, and he
was given three years' probation "to commence at the expiration of
confinement" for the conspiracy. The respective appeals of Feola,
Alsondo, and Rosa were considered by the United States Court of
Appeals for the Second Circuit in a single opinion. After an
initial ruling partially to the contrary, that court affirmed the
judgment of conviction on the substantive charges, but reversed the
conspiracy convictions.
United States v. Alsondo, 486 F.2d
1339, 1346 (1973). [
Footnote 3]
Because of a
Page 420 U. S. 674
conflict among the federal Circuits on the
scienter
issue with respect to a conspiracy charge, [
Footnote 4] we granted the Government's petition for a
writ of certiorari in Feola's case. [
Footnote 5] 416 U.S. 935 (1974).
I
The facts reveal a classic narcotics "rip-off." The details are
not particularly important for our present purposes. We need note
only that the evidence shows that Feola and his confederates
arranged for a sale of heroin to buyers who turned out to be
undercover agents for the Bureau of Narcotics and Dangerous Drugs.
The group planned to palm off on the purchasers, for a substantial
sum, a form of sugar in place of heroin and, should that ruse fail,
simply to surprise their unwitting buyers and relieve them of the
cash they had brought along for payment. The plan failed when one
agent, his suspicions being aroused, [
Footnote 6] drew his revolver in time to counter an
assault upon another agent from the rear.
Page 420 U. S. 675
Instead of enjoying the rich benefits of a successful swindle,
Feola and his associates found themselves charged, to their
undoubted surprise, with conspiring to assault, and with
assaulting, federal officers.
At the trial, the District Court, without objection from the
defense, charged the jurors that, in order to find any of the
defendants guilty on either the conspiracy count or the substantive
one, they were not required to conclude that the defendants were
aware that their quarry were federal officers. [
Footnote 7]
The Court of Appeals reversed the conspiracy convictions on a
ground not advanced by any of the defendants. Although it approved
the trial court's instructions to the jury on the substantive
charge of assaulting a federal officer, [
Footnote 8] it nonetheless concluded that the failure
to charge that knowledge of the victim's official identity must be
proved in order to convict on the conspiracy charge amounted to
plain error. 486 F.2d at 1344. The court perceived itself bound by
a line of cases, commencing with Judge Learned Hand's opinion in
United States v. Crimmins, 123 F.2d 271 (CA2 1941), all
holding
Page 420 U. S. 676
that
scienter of a factual element that confers federal
jurisdiction, while unnecessary for conviction of the substantive
offense, is required in order to sustain a conviction for
conspiracy to commit the substantive offense. Although the court
noted that the
Crimmins rationale "has been criticized,"
486 F.2d at 1343, and, indeed, offered no argument in support of
it, it accepted "the controlling precedents somewhat reluctantly."
Id. at 1344.
II
The Government's plea is for symmetry. It urges that, since
criminal liability for the offense described in 18 U.S.C. § 111
does not depend on whether the assailant harbored the specific
intent to assault a federal officer, no greater
scienter
requirement can be engrafted upon the conspiracy offense, which is
merely an agreement to commit the act proscribed by § 111.
Consideration of the Government's contention requires us
preliminarily to pass upon its premise, the proposition that
responsibility for assault upon a federal officer does not depend
upon whether the assailant was aware of the official identity of
his victim at the time he acted.
That the "federal officer" requirement is anything other than
jurisdictional [
Footnote 9] is
not seriously urged upon us; indeed,
Page 420 U. S. 677
both Feola [
Footnote 10]
and the Court of Appeals, 486 F.2d at 1342, concede that
scienter is not a necessary element of the substantive
offense under § 111. Although some early case were to the contrary,
[
Footnote 11] the concession
recognizes what is now the practical unanimity of the Courts of
Appeals. [
Footnote 12]
Nevertheless, we are not always guided by concessions of the
parties, and the very considerations of symmetry urged by the
Government suggest that we first turn our attention to the
substantive offense.
The Court has considered § 111 before. In
Ladner v. United
States, 358 U. S. 169
(1958), the issue was whether a single shotgun blast which wounded
two federal agents effected multiple assaults, within the meaning
of 18 U.S.C. § 254 (1940 ed.), one of the statutory predecessors to
the present § 111. [
Footnote
13] The Government urged that
Page 420 U. S. 678
§ 254 had been intended not only to deter interference with
federal law enforcement activities but, as well, to forestall
injury to individual officers, as "wards" of the United States.
Given the latter formulation of legislative intent, argued the
Government, a single blast wounding two officers would constitute
two offenses. The Court disagreed, because it found an equally
plausible reading of the legislative intent to be that
"the congressional aim was to prevent hindrance to the execution
of official duty . . . and was not to protect federal officers
except as incident to that aim,"
358 U.S. at
358 U. S.
175-176. Under that view of legislative purpose, to have
punishment depend upon the number of officers impeded would be
incongruous. With no clear choice between these alternative
formulations of congressional intent, in light of the statutory
language and sparse legislative history, the Court applied a policy
of lenity and, for purposes of the case, adopted the less harsh
reading.
Id. at
358 U. S.
177-178. It therefore held that the single discharge of
a shotgun constituted only a single violation of § 254.
In the present case, we see again the possible consequences of
an interpretation of § 111 that focuses on only one of the
statute's apparent aims. If the primary purpose is to protect
federal law enforcement personnel, that purpose could well be
frustrated by the imposition of a strict
scienter
requirement. On the other hand, if § 111 is seen primarily as an
anti-obstruction statute, it is likely that Congress intended
criminal liability to be imposed only when a person acted with the
specific intent to impede enforcement activities. Otherwise, it has
been said:
"Were knowledge not required in obstruction of justice offenses
described by these terms, wholly innocent (or
Page 420 U. S. 679
even socially desirable) behavior could be transformed into a
felony by the wholly fortuitous circumstance of the concealed
identity of the person resisted. [
Footnote 14]"
Although we adhere to the conclusion in
Ladner that
either view of legislative intent is "plausible," we think it plain
that Congress intended to protect both federal officers and federal
functions, and that, indeed, furtherance of the one policy advances
the other. The rejection of a strict
scienter requirement
is consistent with both purposes.
Section 111 has its origin in § 2 of the Act of May 18, 1934, c.
299, 48 Stat. 781. Section 1 of that Act, in which the present 18
U.S.C. § 1114 has its roots, made it a federal crime to kill
certain federal law enforcement personnel while engaged in, or on
account of, the performance of official duties, [
Footnote 15] and § 2 forbade forcible
resistance or interference with, or assault upon, any officer
designated in § 1 while so engaged. The history of the 1934 Act,
though scanty, offers insight into its multiple purposes:
Page 420 U. S. 680
the pertinent committee reports consist, almost in their
entirety, of a letter dated January 3, 1934, from Attorney General
Cummings urging the passage of the legislation. [
Footnote 16] In that letter, the Attorney
General states
Page 420 U. S. 681
that this was needed "for the protection of Federal officers and
employees." Compelled reliance upon state courts, "however
respectable and well disposed, for the protection of [federal]
investigative and law enforcement personnel," was inadequate, and
there was need for resort to a federal forum.
Although the letter refers only to the need to protect federal
personnel, Congress clearly was concerned with the safety of
federal officers insofar as it was tied to the efficacy of law
enforcement activities. This concern is implicit in the decision to
list those officers protected, rather than merely to forbid assault
on any federal employee. Indeed, the statute as originally
formulated would have prohibited attack on "any civil official,
inspector,
Page 420 U. S. 682
agent, or other officer or employee of the United States."
See H.R.Rep. No. 1455, 73d Cong., 2d Sess., 1 (1934).
The House rejected this, and insisted on the version that was
ultimately enacted. Although the reason for the insistence is
unexplained, it is fair to assume that the House was of the view
that the bill as originally drafted strayed too far from the
purpose of insuring the integrity of law enforcement pursuits.
[
Footnote 17]
In resolving the question whether Congress intended to condition
responsibility for violation of § 111 on the actor's awareness of
the identity of his victim, we give weight to both purposes of the
statute, but here again, as in
Ladner, we need not make a
choice between them. Rather, regardless of which purpose we would
emphasize, we must take note of the means Congress chose for its
achievement.
Attorney General Cummings, in his letter, emphasized the
importance of providing a federal forum in which attacks upon named
federal officers could be prosecuted. This, standing alone, would
not indicate a congressional conclusion to dispense with a
requirement of specific intent to assault a federal officer, for
the locus of the
Page 420 U. S. 683
forum does not of itself define the reach of the substantive
offense. But the view that § 111 requires knowledge of the victim's
office rests on the proposition that the reference to the federal
forum was merely a shorthand expression of the need for a statute
to fill a gap in the substantive law of the States.
See United
States v. Fernandez, 497 F.2d 730, 745 (CA9 1974) (concurring
opinion),
cert. pending, No. 73-6868. In that view, § 111
is seen merely as a federal aggravated assault statute, necessary
solely because some state laws mandate increased punishment only
for assaults on state peace officers; assaults on federal personnel
would be punishable, under state law, only for simple assault. As a
federal aggravated assault statute, § 111 would be read as
requiring the same degree of knowledge as its state law
counterparts.
See Morissette v. United States,
342 U. S. 246,
342 U. S. 263
(1952). The argument fails, however, because it is fairly certain
that Congress was not enacting § 111 as a federal counterpart to
state proscriptions of aggravated assault.
The Attorney General's call for a federal forum in which to
prosecute an attacker of a federal officer was directed at both
sections of the proposed bill that became the 1934 Act. The letter
concerned not only the section prohibiting assaults, but also the
section prohibiting killings. The latter, § 1, was not needed to
fill a gap in existing substantive state law. The States proscribed
murder, and, until recently, with the enactment of certain statutes
in response to the successful attack on capital punishment, murder
of a peace officer has not been deemed an aggravated form of
murder, for all States usually have punished murderers with the
most severe sanction the law allows. Clearly, then, Congress
understood that it was not only filling one gap in state
substantive law, but, in large part, was duplicating state
proscriptions in order to insure a federal forum for the trial
of
Page 420 U. S. 684
offenses involving federal officers. Fulfillment of the
congressional goal to protect federal officers required then, as it
does now, the highest possible degree of certainty that those who
killed or assaulted federal officers were brought to justice. In
the congressional mind, with the reliance upon the Attorney
General's letter, certainty required that these cases be tried in
the federal courts, for no matter how "respectable and well
disposed," it would not be unreasonable to suppose that state
officials would not always or necessarily share congressional
feelings of urgency as to the necessity of prompt and vigorous
prosecutions of those who violate the safety of the federal
officer. From the days of prohibition to the days of the modern
civil rights movement, the statutes federal agents have sworn to
uphold and enforce have not always been popular in every corner of
the Nation. Congress may well have concluded that § 111 was
necessary in order to insure uniformly vigorous protection of
federal personnel, including those engaged in locally unpopular
activity.
We conclude from all this that, in order to effectuate the
congressional purpose of according maximum protection to federal
officers by making prosecution for assaults upon them cognizable in
the federal courts, § 111 cannot be construed as embodying an
unexpressed requirement that an assailant be aware that his victim
is a federal officer. All the statute requires is an intent to
assault, not an intent to assault a federal officer. A contrary
conclusion would give insufficient protection to the agent
enforcing an unpopular law, and none to the agent acting under
cover. [
Footnote 18]
Page 420 U. S. 685
This interpretation poses no risk of unfairness to defendants.
It is no snare for the unsuspecting. Although the perpetrator of a
narcotics "rip-off" such as the one involved here may be surprised
to find that his intended victim is a federal officer in civilian
apparel, he nonetheless knows from the very outset that his planned
course of conduct is wrongful. The situation is not one where
legitimate conduct becomes unlawful solely because of the identity
of the individual or agency affected. In a case of this kind, the
offender takes his victim as he finds him. The concept of criminal
intent does not extend so far as to require that the actor
understand not only the nature of his act, but also its consequence
for the choice of a judicial forum.
Page 420 U. S. 686
We are not to be understood as implying that the defendant's
state of knowledge is never a relevant consideration under § 111.
The statute does require a criminal intent, and there may well be
circumstances in which ignorance of the official status of the
person assaulted or resisted negates the very existence of
mens
rea. For example, where an officer fails to identify himself
or his purpose, his conduct in certain circumstances might
reasonably be interpreted as the unlawful use of force directed
either at the defendant or his property. In a situation of that
kind, one might be justified in exerting an element of resistance,
and an honest mistake of fact would not be consistent with criminal
intent. [
Footnote 19]
We hold, therefore, that, in order to incur criminal liability
under § 111, an actor must entertain merely the criminal intent to
do the acts therein specified. We now consider whether the rule
should be different where persons conspire to commit those
acts.
III
Our decisions establish that, in order to sustain a judgment of
conviction on a charge of conspiracy to violate a federal statute,
the Government must prove at least the degree of criminal intent
necessary for the substantive offense itself.
Ingram v. United
States, 360 U. S. 672,
360 U. S. 678
(1959).
See Pettibone v. United States, 148 U.
S. 197 (1893). Respondent Feola urges upon us the
proposition that the Government must show a degree of criminal
intent in the conspiracy count greater than is necessary to convict
for the substantive offense; he urges that, even though it is not
necessary to show that he was
Page 420 U. S. 687
aware of the official identity of his assaulted victims in order
to find him guilty of assaulting federal officers, in violation of
18 U.S.C. § 111, the Government nonetheless must show that he was
aware that his intended victims were undercover agents, if it is
successfully to prosecute him for conspiring to assault federal
agents. And the Court of Appeals held that the trial court's
failure to charge the jury to this effect constituted plain
error.
The general conspiracy statute, 18 U.S.C. § 371, [
Footnote 20] offers no textual support for
the proposition that, to be guilty of conspiracy, a defendant in
effect must have known that his conduct violated federal law. The
statute makes it unlawful simply to "conspire . . . to commit any
offense against the United States." A natural reading of these
words would be that, since one can violate a criminal statute
simply by engaging in the forbidden conduct, a conspiracy to commit
that offense is nothing more than an agreement to engage in the
prohibited conduct. Then, where, as here, the substantive statute
does not require that an assailant know the official status of his
victim, there is nothing on the face of the conspiracy statute that
would seem to require that those agreeing to the assault have a
greater degree of knowledge.
We have been unable to find any decision of this Court that
lends support to the respondent. On the contrary, at least two of
our cases implicitly repudiate his position. The appellants in
In re Coy, 127 U. S. 731
(1888), were
Page 420 U. S. 688
convicted of conspiring to induce state election officials to
neglect their duty to safeguard ballots and election results. The
offense occurred with respect to an election at which Indiana
voters, in accordance with state law, voted for both local
officials and members of Congress. Much like Feola here, those
appellants asserted that they could not be punished for conspiring
to violate federal law because they had intended only to affect the
outcome of state races. In short, it was urged that the conspiracy
statute embodied a requirement of specific intent to violate
federal law.
Id. at
127 U. S. 753.
The Court rejected this contention, and held that the statute
required only that the conspirators agree to participate in the
prohibited conduct.
See Anderson v. United States,
417 U. S. 211,
417 U. S. 226
(1974).
Similarly, in
United States v. Freed, 401 U.
S. 601 (1971), we reversed the dismissal of an
indictment charging defendants with possession of, and with
conspiracy to possess, hand grenades that had not been registered,
as required by 26 U.S.C. § 5861(d). The trial court dismissed the
indictment for failure to allege that the defendants knew that the
hand grenades, in fact, were unregistered. We held that actual
knowledge that the grenades were unregistered was not an element of
the substantive offense created by Congress, and therefore upheld
the indictment both as to the substantive offense and as to the
charge of conspiracy. Again, we declined to require a greater
degree of intent for conspiratorial responsibility than for
responsibility for the underlying substantive offense.
With no support on the face of the general conspiracy statute or
in this Court's decisions, respondent relies solely on the line of
cases commencing with
United States v. Crimmins, 123 F.2d
271 (CA2 1941), for the principle that the Government must
prove
Page 420 U. S. 689
"anti-federal" intent in order to establish liability under §
371. In
Crimmins, the defendant had been found guilty of
conspiring to receive stolen bonds that had been transported in
interstate commerce. Upon review, the Court of Appeals pointed out
that the evidence failed to establish that Crimmins actually knew
the stolen bonds had moved into the State. Accepting for the sake
of argument the assumption that such knowledge was not necessary to
sustain a conviction on the substantive offense, Judge Learned Hand
nevertheless concluded that to permit conspiratorial liability
where the conspirators were ignorant of the federal implications of
their acts would be to enlarge their agreement beyond its terms as
they understood them. He capsulized the distinction in what has
become well known as his "traffic light" analogy:
"While one may, for instance, be guilty of running past a
traffic light of whose existence one is ignorant, one cannot be
guilty of conspiring to run past such a light, for one cannot agree
to run past a light unless one supposes that there is a light to
run past."
Id. at 273.
Judge Hand's attractive, but perhaps seductive, analogy has
received a mixed reception in the Courts of Appeals. The Second
Circuit, of course, has followed it; [
Footnote 21] others have rejected it. [
Footnote 22] It appears that most have
avoided it by the simple expedient of inferring the requisite
knowledge from the scope of the conspiratorial
Page 420 U. S. 690
venture. [
Footnote 23] We
conclude that the analogy, though effective prose, is, as applied
to the facts before us, bad law. [
Footnote 24]
The question posed by the traffic light analogy is not before
us, just as it was not before the Second Circuit in
Crimmins. Criminal liability, of course, may be imposed on
one who runs a traffic light regardless of whether he harbored the
"evil intent" of disobeying the light's command; whether he drove
so recklessly as to be unable to perceive the light; whether,
thinking he was observing all traffic rules, he simply failed to
notice the light; or whether, having been reared elsewhere, he
thought that the light was only an ornament. Traffic violations
generally fall into that category of offenses that dispense with a
mens rea requirement.
See United States v.
Dotterweich, 320 U. S. 277
(1943). These laws embody the social judgment that it is fair to
punish one who intentionally engages in conduct that creates a risk
to others, even though no risk is intended or the actor,
Page 420 U. S. 691
through no fault of his own. is completely unaware of the
existence of any risk. The traffic light analogy poses the question
whether it is fair to punish parties to an agreement to engage
intentionally in apparently innocent conduct where the unintended
result of engaging in that conduct is the violation of a criminal
statute.
But this case does not call upon us to answer this question, and
we decline to do so, just as we have once before.
United States
v. Freed, 401 U.S. at
401 U. S. 609 n. 14. We note in passing, however, that
the analogy comes close to stating what has been known as the
"
Powell doctrine," originating in
People v.
Powell, 63 N.Y. 88 (1875), to the effect that a conspiracy, to
be criminal, must be animated by a corrupt motive or a motive to do
wrong. Under this principle, such a motive could be easily
demonstrated if the underlying offense involved an act clearly
wrongful in itself; but it had to be independently demonstrated if
the acts agreed to were wrongful solely because of statutory
proscription.
See Note, Developments in the Law --
Criminal Conspiracy, 72 Harv.L.Rev. 920, 93937 (1959).
Interestingly, Judge Hand himself was one of the more severe
critics of the
Powell doctrine. [
Footnote 25]
That Judge Hand should reject the
Powell doctrine and
then create the
Crimmins doctrine seems curious enough.
Fatal to the latter, however, is the fact that it was announced in
a case to which it could not have been meant to apply. In
Crimmins, the substantive offense, namely, the receipt of
stolen securities that had been
Page 420 U. S. 692
in interstate commerce, proscribed clearly wrongful conduct.
Such conduct could not be engaged in without an intent to
accomplish the forbidden result. So, too, it is with assault, the
conduct forbidden by the substantive statute, § 111, presently
before us. One may run a traffic light "of whose existence one is
ignorant," but assaulting another "of whose existence one is
ignorant" probably would require unearthly intervention. Thus, the
traffic light analogy, even if it were a correct statement of the
law, is inapt, for the conduct proscribed by the substantive
offense, here assault, is not of the type outlawed without regard
to the intent of the actor to accomplish the result that is made
criminal. If the analogy has any vitality at all, it is to conduct
of the latter variety; that, however is a question we save for
another day. We hold here only that, where a substantive offense
embodies only a requirement of
mens rea as to each of its
elements, the general federal conspiracy statute requires no
more.
The
Crimmins rule rests upon another foundation: that
it is improper to find conspiratorial liability where the parties
to the illicit agreement were not aware of the fact giving rise to
federal jurisdiction, because the essence of conspiracy is
agreement, and persons cannot be punished for acts beyond the scope
of their agreement. 123 F.2d at 273. This "reason" states little
more than a conclusion, for it is clear that one may be guilty as a
conspirator for acts the precise details of which one does not know
at the time of the agreement.
See Blumenthal v. United
States, 332 U. S. 539,
332 U. S. 557
(1947). The question is not merely whether the official status of
an assaulted victim was known to the parties at the time of their
agreement, but whether the acts contemplated by the conspirators
are to be deemed legally different from those actually performed
solely because of the official identity of the
Page 420 U. S. 693
victim. Put another way, does the identity of the proposed
victim alter the legal character of the acts agreed to, or is it no
more germane to the nature of those acts than the color of the
victim's hair?
Our analysis of the substantive offense in
420 U.
S. supra, is sufficient to convince us that,
for the purpose of individual guilt or innocence, awareness of the
official identity of the assault victim is irrelevant. We would
expect the same to obtain with respect to the conspiracy offense
unless one of the policies behind the imposition of conspiratorial
liability is not served where the parties to the agreement are
unaware that the intended target is a federal law enforcement
official.
It is well settled that the law of conspiracy serves ends
different from, and complementary to, those served by criminal
prohibitions of the substantive offense. Because of this,
consecutive sentences may be imposed for the conspiracy and for the
underlying crime.
Callanan v. United States, 364 U.
S. 587 (1961);
Pinkerton v. United States,
328 U. S. 640
(1946). Our decisions have identified two independent values served
by the law of conspiracy. The first is protection of society from
the dangers of concerted criminal activity,
Callanan v. United
States, 364 U.S. at
364 U. S. 593;
Dennis v. United States, 341 U. S. 494,
341 U. S.
573-574 (1951) (Jackson, J., concurring). That
individuals know that their planned joint venture violates federal
as well as state law seems totally irrelevant to that purpose of
conspiracy law which seeks to protect society from the dangers of
concerted criminal activity. Given the level of criminal intent
necessary to sustain conviction for the substantive offense, the
act of agreement to commit the crime is no less opprobrious and no
less dangerous because of the absence of knowledge of a fact
unnecessary to the formation of criminal intent. Indeed, unless
imposition of an "anti-federal"
Page 420 U. S. 694
knowledge requirement serves social purposes external to the law
of conspiracy of which we are unaware, its imposition here would
serve only to make it more difficult to obtain convictions on
charges of conspiracy, a policy with no apparent purpose.
The second aspect is that conspiracy is an inchoate crime. This
is to say, that, although the law generally makes criminal only
antisocial conduct, at some point in the continuum between
preparation and consummation, the likelihood of a commission of an
act is sufficiently great, and the criminal intent sufficiently
well formed, to justify the intervention of the criminal law.
See Note, Developments in the Law -- Criminal Conspiracy,
72 Harv.L.Rev. at 923-925. The law of conspiracy identifies the
agreement to engage in a criminal venture as an event of sufficient
threat to social order to permit the imposition of criminal
sanctions for the agreement alone, plus an overt act in pursuit of
it, regardless of whether the crime agreed upon actually is
committed.
United States v. Bayer, 331 U.
S. 532,
331 U. S. 542
(1947). Criminal intent has crystallized, and the likelihood of
actual, fulfilled commission warrants preventive action.
Again, we do not see how imposition of a strict "anti-federal"
scienter requirement would relate to this purpose of
conspiracy law. Given the level of intent needed to carry out the
substantive offense, we fail to see how the agreement is any less
blameworthy or constitutes less of a danger to society solely
because the participants are unaware which body of law they intend
to violate. Therefore, we again conclude that imposition of a
requirement of knowledge of those facts that serve only to
establish federal jurisdiction would render it more difficult to
serve the policy behind the law of conspiracy without serving any
other apparent social policy.
We hold, then, that assault of a federal officer pursuant to an
agreement to assault is not, even in the words of
Page 420 U. S. 695
Judge Hand, "beyond the reasonable intendment of the common
understanding,"
United States v. Crimmins, 123 F.2d at
273. The agreement is not thereby enlarged, for knowledge of the
official identity of the victim is irrelevant to the essential
nature of the agreement, entrance into which is made criminal by
the law of conspiracy.
Again we point out, however, that the state of knowledge of the
parties to an agreement is not always irrelevant in a proceeding
charging a violation of conspiracy law. First, the knowledge of the
parties is relevant to the same issues and to the same extent as it
may be for conviction of the substantive offense. Second, whether
conspirators knew the official identity of their quarry may be
important, in some cases, in establishing the existence of federal
jurisdiction. The jurisdictional requirement is satisfied by the
existence of facts tying the proscribed conduct to the area of
federal concern delineated by the statute. Federal jurisdiction
always exists where the substantive offense is committed in the
manner therein described, that is, when a federal officer is
attacked. Where, however, there is an unfulfilled agreement to
assault, it must be established whether the agreement, standing
alone, constituted a sufficient threat to the safety of a federal
officer so as to give rise to federal jurisdiction. If the
agreement calls for an attack on an individual specifically
identified, either by name or by some unique characteristic, as the
putative buyers in the present case, and that specifically
identified individual is, in fact, a federal officer, the agreement
may be fairly characterized as one calling for an assault upon a
federal officer, even though the parties were unaware of the
victim's actual identity and even though they would not have agreed
to the assault had they known that identity. Where the object of
the intended attack is not identified with sufficient specificity
so as to give rise to the conclusion
Page 420 U. S. 696
that, had the attack been carried out, the victim would have
been a federal officer, it is impossible to assert that the mere
act of agreement to assault poses a sufficient threat to federal
personnel and functions so as to give rise to federal
jurisdiction.
To summarize, with the exception of the infrequent situation in
which reference to the knowledge of the parties to an illegal
agreement is necessary to establish the existence of federal
jurisdiction, we hold that, where knowledge of the facts giving
rise to federal jurisdiction is not necessary for conviction of a
substantive offense embodying a
mens rea requirement, such
knowledge is equally irrelevant to questions of responsibility for
conspiracy to commit that offense.
The judgment of the Court of Appeals with respect to the
respondent's conspiracy conviction is reversed.
It is so ordered.
[
Footnote 1]
"§ 111. 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 on 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."
Among the persons "designated in section 1114" of 18 U.S.C. is
"any officer or employee . . . of the Bureau of Narcotics and
Dangerous Drugs."
[
Footnote 2]
Codefendant Alsondo was also convicted of carrying a firearm
unlawfully during the commission of the other felonies, in
violation of 18 U.S.C. § 924(c)(2).
[
Footnote 3]
The appeal of the fourth defendant, Farr, was processed
separately by the Court of Appeals. A different panel, upon the
authority of
Alsondo, similarly affirmed the judgment of
conviction on the substantive charge, but reversed the conspiracy
conviction.
United States v. Farr, 487 F.2d 1023 (CA2
1973),
cert. pending, No. 73-953. The District Court
imposed concurrent sentences in Farr's case, and the United States
has not sought review here.
[
Footnote 4]
See, e.g., United States v. Iannelli, 477 F.2d 999,
1002 (CA3 1973),
cert. granted on another issue, 417 U.S.
907 (1974);
United States v. Thompson, 476 F.2d 1196,
1198-1200 (CA7),
cert. denied, 414 U.
S. 918 (1973);
United States v. Polesti, 489
F.2d 822, 824 (CA7 1973),
cert. pending, No. 73-5489;
United States v. Roselli, 432 F.2d 879, 891-892 (CA9
1970),
cert. denied, 401 U.S. 924 (1971);
United
States v. Fernandez, 497 F.2d 730, 738-739 (CA9 1974),
cert. pending, No. 73-6868.
[
Footnote 5]
The sentence imposed on codefendants Alsondo and Rosa possessed
elements of concurrency, and the United States did not petition for
a writ of certiorari in their cases.
[
Footnote 6]
The agent opened a closet door in the Manhattan apartment where
the sale was to have taken place and observed a man on the floor,
bound and gagged. App. 11-12.
[
Footnote 7]
The court charged:
"In this connection, it is not necessary for the government to
prove that the defendants or any of them knew that the persons they
were going to assault or impede or resist were federal agents. It's
enough, as far as this particular element of the case is concerned,
for the government to prove that the defendants agreed and
conspired to commit an assault."
Tr. 513
"I believe I have previously mentioned to you that the statute
does not require that the defendant know either the identity of the
person assaulted or imped[ed] or intimidated or that the person
assaulted is a federal officer."
Id. at 525.
[
Footnote 8]
The Second Circuit consistently has so held.
See, e.g.,
United States v. Lombardozzi, 335 F.2d 414, 416,
cert.
denied, 379 U.S. 914 (1964);
United States v.
Montanaro, 362 F.2d 527, 528,
cert. denied, 385 U.S.
920 (1966);
United States v. Ulan, 421 F.2d 787, 788
(1970).
[
Footnote 9]
We are content to state the issue this way despite its potential
to mislead. Labeling a requirement "jurisdictional" does not
necessarily mean, of course, that the requirement is not an element
of the offense Congress intended to describe and to punish. Indeed,
a requirement is sufficient to confer jurisdiction on the federal
courts for what otherwise are state crimes precisely because it
implicates factors that are an appropriate subject for federal
concern. With respect to the present case, for example, a mere
general policy of deterring assaults would probably prove to be an
undesirable or insufficient basis for federal jurisdiction; but
where Congress seeks to protect the integrity of federal functions
and the safety of federal officers, the interest is sufficient to
warrant federal involvement. The significance of labeling a
statutory requirement as "jurisdictional" is not that the
requirement is viewed as outside the scope of the evil Congress
intended to forestall, but merely that the existence of the fact
that confers federal jurisdiction need not be one in the mind of
the actor at the time he perpetrates the act made criminal by the
federal statute. The question, then, is not whether the requirement
is jurisdictional, but whether it is jurisdictional only.
[
Footnote 10]
Brief for Respondent 6; Tr. of Oral Arg.19.
[
Footnote 11]
E.g., Sparks v. United States, 90 F.2d 61, 63 (CA6
1937);
Hall v. United States, 235 F.2d 248, 249 (CA5
1956).
[
Footnote 12]
E.g., United States v. Perkins, 488 F.2d 652, 654 (CA1
1973),
cert. denied, 417 U.S. 913 (1974);
United
States v. Ulan, 421 F.2d at 788 (CA2);
United States v.
Goodwin, 440 F.2d 1152, 1156 (CA3 1971);
United States v.
Wallace, 368 F.2d 537 (CA4 1966),
cert. denied, 386
U.S. 976 (1967);
Bennett v. United States, 285 F.2d 567,
570-571 (CA5 1960),
cert. denied, 366 U.S. 911 (1961);
United States v. Kiraly, 445 F.2d 291, 292 (CA6),
cert. denied, 404 U.S. 915 (1971);
United States v.
Ganter, 436 F.2d 364, 367 (CA7 1970);
United States v.
Kartman, 417 F.2d 893, 894 (CA9 1969).
See United States
v. Leach, 429 F.2d 956, 959-960 (CA8 1970),
cert.
denied, 402 U.S. 986 (1971).
[
Footnote 13]
Section 111 assumed its present form in 1948, 62 Stat. 688, when
it replaced both § 118 and § 254 of 18 U.S.C. (1940 ed.). The
Reviser's Note states that this was done "with changes in
phraseology and substance necessary to effect the consolidation."
H.R.Rep. No. 304, 80th Cong., 1st Sess., A12 (1947).
[
Footnote 14]
United States v. Fernandez, 497 F.2d at 744
(Hufstedler, J., concurring).
[
Footnote 15]
Section 1 provided:
"That whoever shall kill, as defined in sections 273 and 274 of
the Criminal Code, any United States marshal or deputy United
States marshal, special agent of the Division of Investigation of
the Department of Justice, post-office inspector, Secret Service
operative, any officer or enlisted man of the Coast Guard, any
employee of any United States penal or correctional institution,
any officer of the customs or of the internal revenue, any
immigrant inspector or any immigration patrol inspector, while
engaged in the performance of his official duties, or on account of
the performance of his official duties, shall be punished as
provided under section 275 of the Criminal Code."
C. 299, 48 Stat. 780. A glance at the present § 1114 reveals how
the list of protected federal officers has been greatly expanded.
Plainly, some of those now named,
viz., "employee of the
Postal Service" and "employee of the National Park Service," are
not necessarily engaged in the execution of federal law.
[
Footnote 16]
S.Rep. No. 535, 73d Cong., 2d Sess. (1934); H.R.Rep. No. 1455,
73d Cong., 2d Sess. (1934); H.R.Conf.Rep. No. 1593, 73d Cong., 2d
Sess. (1934); 78 Cong.Rec. 8126-8127 (1934).
The Attorney General's letter was addressed to Senator Ashurst,
Chairman of the Senate Committee on the Judiciary, and read in full
as follows:
"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."
"Respectfully,"
HOMER CUMMINGS,
Attorney General.
[
Footnote 17]
This conclusion is supported by the wording of § 2 of the 1934
Act (and of the present § 1113), for that section outlawed more
than assaults. It made it a criminal offense "forcibly [to] resist,
oppose, impede, intimidate, or interfere with" the named officials
while in the performance of their duty. Statutory language of this
type had appeared as early as 1866, in § 6 of the Act of July 18 of
that year, 14 Stat. 179, embracing a comprehensive scheme for the
prevention of smuggling. The bulk of that statute, to be sure, was
concerned with essentially regulatory matters; § 6, however,
proscribed a broad range of actions -- beyond simple forcible
resistance -- that would frustrate effective enforcement of the
body of the statute. In employing a similar formulation in 1934,
Congress could be presumed to be going beyond mere protection of
the safety of federal officers without regard to the integrity of
their official functions.
[
Footnote 18]
Some indication that Congress did not intend to exclude
undercover agents from the protection of the statute comes from the
inclusion of the term "Secret Service operative" in the list of
protected officials in the 1934 Act. In the 1948 revision, that
term was replaced by "any officer or employee of the secret service
or of the Bureau of Narcotics." 62 Stat. 756. That Bureau, in 1948,
part of the Treasury, has since been abolished, and its functions
transferred to the Bureau of Narcotics and Dangerous Drugs, the
predecessor agency to the present Drug Enforcement Administration.
See Reorganization Plan No. 2 of 1973, 38 Fed.Reg.
15932.
Our Brother STEWART, in dissent, asserts,
post at
420 U. S.
705-706, that, since only state prohibitions of simple
assault deter attack on the undercover agent, it is "nonsense" to
hold that Congress concluded that a strict
scienter
requirement would have given insufficient protection to undercover
agents. This argument conveniently ignores § 1 of the 1934 Act, the
homicide prohibition. Certainly, prior to 1934, all States outlawed
murder, and if the congressional judgment that there was need to
prosecute in federal courts assaults upon federal officers
regardless of the reach of state law was "nonsense," enactment of
the homicide prohibition -- completely duplicating the coverage of
state statutes -- was legislative fatuity. It is more plausible, we
think, to conclude that Congress chose not to entrust to the States
sole responsibility for the interdiction of attacks, fatal or not,
upon federal law enforcement officials -- a matter essential to the
morale of all federal law enforcement personnel and central to the
efficacy of federal law enforcement activities. The dissent would
have us conclude that Congress silently chose to treat assaults and
homicides differently; but we have before us one bill with a single
legislative history, and we decline to bifurcate our
interpretation.
[
Footnote 19]
See United States v. Perkins, 488 F.2d at 654-655;
United States v. Ulan, 421 F.2d at 789-790;
United
States v. Goodwin, 440 F.2d at 1156;
United States v.
Young, 464 F.2d 160, 163 (CA5 1972).
[
Footnote 20]
Title 18 U.S.C. § 371 provides:
"If two or more persons conspire either to commit any offense
against the United States, or to defraud the United States, or any
agency thereof in any manner or for any purpose, and one or more of
such persons do any act to effect the object of the conspiracy,
each shall be fined not more than $10,000 or imprisoned not more
than five years, or both."
[
Footnote 21]
See, e.g., United States v. Vilhotti, 452 F.2d 1186,
1190 (1971),
cert. denied, 406 U.S. 947 (1972),
and
sub nom. Malone v. United States, 405 U.S. 1041 (1972);
United States v. Sherman, 171 F.2d 619, 623-624 (1948),
cert. denied sub nom. Grimaldi v. United States and
Whelan v. United States, 337 U.S. 931 (1949).
[
Footnote 22]
See, e.g., United States v. Polesti, 489 F.2d at 824;
United States v. Roselli, 432 F.2d at 891-892.
[
Footnote 23]
See, e.g., United States v. Garafola, 471 F.2d 291 (CA6
1972);
United States v. Iacovetti, 466 F.2d 1147, 1154
(CA5 1972),
cert. denied, 410 U.S. 908 (1973);
United
States v. Cimini, 427 F.2d 129, 130 (CA6 1970);
Nassif v.
United States, 370 F.2d 147, 152-153 (CA8 1966).
What little commentary the
Crimmins rule has attracted
has been uniformly critical.
See Note, Developments in the
Law -- Criminal Conspiracy, 72 Harv.L.Rev. 920, 937-940 (1959);
Model Penal Code § 5.03 (Tent.Draft No. 10, 1960); 1 Working Papers
of the National Commission on Reform of Federal Criminal Laws
388-389 (1970); Final Report of the National Commission on Reform
of Federal Criminal Laws §§ 203, 204, and 1004 (1971).
[
Footnote 24]
The Government rather effectively exposes the fallacy of the
Crimmins traffic light analogy by recasting it in terms of
a jurisdictional element. The suggested example is a traffic light
on an Indian reservation. Surely, one may conspire with others to
disobey the light but be ignorant of the fact that it is on the
reservation. As applied to a jurisdictional element of this kind,
the formulation makes little sense.
[
Footnote 25]
"Starting with
People v. Powell . . . , the anomalous
doctrine has indeed gained some footing in the circuit courts of
appeals that for conspiracy there must be a 'corrupt motive. . . .'
Yet it is hard to see any reason for this, or why more proof should
be necessary than that the parties had in contemplation all the
elements of the crime they are charged with conspiracy to
commit."
United States v. Mack, 112 F.2d 290, 292 (CA2
1940).
MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS joins,
dissenting.
Does an assault on a federal officer violate 18 U.S.C. § 111
[
Footnote 2/1] even when the
assailant is unaware, and has no reason to know, that the victim is
other than a private citizen or, indeed, a confederate in crime?
This important question, never decided by the Court, is squarely
presented in a petition for certiorari that has been pending here
for many months: No. 73-6868,
Fernandez v.
Page 420 U. S. 697
United States. [
Footnote
2/2] But this question was not contained in the petition for
certiorari in the present case, and has not been addressed in
either the briefs or ora arguments. The parties have merely assumed
the answer to the question, and directed their attention to the
separate question whether
scienter is an element of
conspiring to violate § 111. Nevertheless the Court sets
out
sua sponte to decide the basic question presented in
Fernandez without the benefit of either briefing or oral
argument by counsel.
This conspicuous disregard of the most basic principle of our
adversary system of justice seems to me indefensible. Clearly, the
petition for certiorari in
Fernandez should have been
granted, and that case decided after briefing and oral argument on
its merits, before the subsidiary issue in the present case was
considered. It is not too late to correct the serious judicial
mistake the Court has made. We should grant certiorari in
Fernandez now, and set the present case for rehearing
after the argument in
Fernandez has been had. But the
Court rejects that course, and I perforce address the fundamental
Fernandez question.
The Court recognizes that "[t]he question . . . is not whether
the [
federal officer'] requirement is jurisdictional, but
whether it is jurisdictional only." Ante at 420 U. S. 677
n. 9. Put otherwise, the question is whether Congress intended to
write an aggravated assault statute, analogous to the many state
statutes which protect the persons and functions of state officers
against assault, or whether Congress intended merely to federalize
every assault which happens to have a federal officer as its
victim. The Court chooses the latter interpretation,
reading
Page 420 U. S. 698
the federal officer requirement to be jurisdictional only. This
conclusion is inconsistent with the pertinent legislative history,
the verbal structure of § 111, accepted canons of statutory
construction, and the dictates of common sense.
Many States provide an aggravated penalty for assaults upon
state law enforcement officers; typically, the victim status
element transforms the assault from a misdemeanor to a felony.
[
Footnote 2/3] These statutes have
a twofold purpose: to reflect the societal gravity associated with
assaulting a public officer and, by providing an enhanced deterrent
against such assault, to accord to public officers and their
functions a protection greater than that which the law of assault
otherwise provides to private citizens and their private
activities. [
Footnote 2/4]
Consonant with these purposes, the accused's knowledge that his
victim had an official status or function is invariably recognized
by the States as an essential element of the aggravated offense.
[
Footnote 2/5] Where an assailant
had no such knowledge, he could not, of course, be deterred by the
statutory threat of enhanced punishment, and it makes no sense to
regard the unknowing assault as being any more reprehensible, in a
moral
Page 420 U. S. 699
or retributive sense, than if the victim had been, as the
assailant supposed, a private citizen.
The state statutes protect only state officers. I would read §
111 as filling the gap and supplying analogous protection for
federal officers and their functions. An aggravated penalty should
apply only where an assailant knew, or had reason to know, that his
victim had some official status or function. It is immaterial
whether the assailant knew the victim was employed by the federal,
as opposed to a state or local, government. That is a matter of
"jurisdiction only," for it does not affect the moral gravity of
the act. If the victim was a federal officer, § 111 applies; if he
was a state or local officer, an analogous state statute or local
ordinance will generally apply. But where the assailant reasonably
thought his victim a common citizen or, indeed, a confederate in
crime, aggravation is simply out of place, and the case should be
tried in the appropriate forum under the general law of assault, as
are unknowing assaults on state officers.
The history of § 111 permits no doubt that this is an aggravated
assault statute, requiring proof of
scienter. The
provision derives from a 1934 statute, 18 U.S.C. § 254 (1940 ed.),
set out in the margin. [
Footnote
2/6] The Attorney General proposed the statute in a letter to
the Chairman of the Senate Committee on the Judiciary; the Attorney
General's reasons are the only ones on record for the provision.
[
Footnote 2/7]
Page 420 U. S. 700
The federal officers covered were listed in a companion
provision, simultaneously enacted, proscribing the killing of
federal officers. [
Footnote 2/8]
The present § 111 emerged
Page 420 U. S. 701
from the 1948 recodification of Title 18, [
Footnote 2/9] "with changes in phraseology and substance
necessary to effect the consolidation" of the former § 254 with a
minor 1909 statute proscribing assaults on officers of the "Bureau
of Animal Industry of the Department of Agriculture." [
Footnote 2/10] As the Court has
recognized, the purport of the present § 111 must be derived from
its major source, the 1934 enactment.
See Ladner v. United
States, 358 U. S. 169,
358 U. S. 176
n. 4.
Rummaging through the spare legislative history of the 1934 law,
the Court manages to persuade itself that
Page 420 U. S. 702
Congress intended to reach unknowing assaults on federal
officers.
Ante at
420 U. S. 679-684. But if that was the congressional
intention, which I seriously doubt, it found no expression in the
legislative product.
The fact is that the 1934 statute
expressly required scienter for an assault conviction. An
assault on a federal officer was proscribed only if perpetrated "on
account of the performance of his official duties."
See
420
U.S. 671fn2/6|>n. 6,
supra. That is, it was
necessary not only that the assailant have notice that his victim
possessed official status or duties, but also that the assailant's
motive be retaliation against the exercise of those duties.
It was not until the
1948 recodification that the
proscription was expanded to cover assaults on federal officers
"while engaged in," as well as "on account of," the performance of
official duties. This was, as the Reviser observed, a technical
alteration; it produced no instructive legislative history.
See 420
U.S. 671fn2/10|>n. 10,
supra. As presently written,
the statute does clearly reach knowing assaults, regardless of
motive. But to suggest that it also reaches wholly unknowing
assaults is to convert the 1948 alteration into one of major
substantive importance, which it concededly was not.
The Court has also managed to convince itself that § 254 was not
an aggravated assault statute. The surest evidence that § 254 was
an aggravated assault statute may be found in its penalty
provision. [
Footnote 2/11] A
single unarmed assault was made, and remains, punishable by a
sentence of three years' imprisonment and a $5,000 fine. One need
not make an exhaustive survey of state law to appreciate that this
is a harsher penalty than is typically imposed for an unarmed
assault on a private citizen. In
Page 420 U. S. 703
1934, federal law already defined and proscribed all varieties
of assault occurring within the admiralty, maritime, and
territorial jurisdiction of the United States: the penalty
structure extended in graded steps, turning on the intent and
methods of the assailant, from three months' to 20 years'
imprisonment. [
Footnote 2/12] If
Congress had intended the victim status element in § 254 to be
"jurisdictional only" -- to provide merely another jurisdictional
basis for trying assaults in the federal courts -- there would have
been no need to append a new and unique penalty provision to § 254.
Instead, Congress could simply have made cross-reference to the
preexisting penalty structure for assaults within federal
jurisdiction. This is not idle speculation. It was precisely the
solution adopted,
in the same 1934 Act, for the new
offense of killing a federal officer: Congress provided that that
new offense be
defined and punished according to the
preexisting, graded, penalty structure for homicides within the
maritime, admiralty, and territorial jurisdiction of the United
States. [
Footnote 2/13]
This deliberated difference in definition and penalty treatment
between the homicide and the assault statutes has an obvious
significance. Congress gave to the new assault statute a unique and
substantively novel definition and penalty. Unless we wish to
assume that Congress was scatterbrained, we must conclude that it
regarded the victim-status element as of substantive -- and not
merely jurisdictional -- importance. That element
Page 420 U. S. 704
was seen as an
aggravating circumstance, just as is
true in the state statutes, and not merely as a factor giving
federal prosecutors and judges jurisdiction to deal with the
offense.
The Court reasons otherwise. Positing that the victim status
element in the homicide statute is jurisdictional only, the Court
concludes that the same must be true of the assault statute.
Ante at
420 U. S.
683-684. Even assuming the premise, the conclusion does
not follow. Quite apart from the radically different ways in which
the two statutes provide for offense definition and penalties, it
requires little imagination to appreciate how Congress could regard
the victim status element as "jurisdictional only" in the homicide
case, but substantively significant in the assault case. The Court
itself supplies a possible reason:
"[The homicide statute] was not needed to fill a gap in existing
substantive state law. The States proscribed murder, and, until
recently, with the enactment of certain statutes in response to the
successful attack on capital punishment, murder of a peace officer
has not been deemed an aggravated form of murder, for all States
usually have punished murderers with the most severe sanction the
law allows."
Ante at
420 U. S.
683.
In other words, the Court suggests that the widely perceived
distinction, in morality and social policy, between assaults,
depending upon the assailant's knowledge of the identity of the
victim, found little or no echo in the law of homicide. From this,
the natural conclusion -- fortified by the penalty provisions --
would be that Congress discriminated between the two statutes,
recognizing the substantive distinction in the one and not in the
other. For reasons I cannot fathom, the Court instead assumes that
Congress was unable to discriminate in this
Page 420 U. S. 705
fashion -- that what had been self-evident to state legislatures
was beyond the capacity of the National Legislature to comprehend.
The Court says it cannot believe
"Congress silently chose to treat assaults and homicides
differently. . . . [W]e have before us one bill with a single
legislative history, and we decline to bifurcate our
interpretation."
Ante at
420 U. S. 685
n. 18. But it was
Congress itself that "bifurcated" the
1934 statute -- by treating homicides and assaults differently as
regards penalty and offense definition and by proscribing only
those assaults that were "
on account of the performance of
official duties." What the Court "declines" to do is to read the
statute that Congress wrote.
While the legislative history of the 1934 law is "scant,"
Ladner v. United States, 358 U.S. at
358 U. S. 174,
it is sufficient to locate a congressional purpose consistent only
with implication of a
scienter requirement. As the Court
said in
Ladner:
"[T]he congressional aim was to prevent hindrance to the
execution of official duty, and thus to assure the carrying out of
federal purposes and interests, and was not to protect federal
officers except as incident to that aim."
Id. at
358 U. S.
175-176. This purpose is, of course, exactly analogous
to the purposes supporting the state statutes which provide
enhanced punishment for assault on state officers. A statute
proscribing interference with official duty does not "prevent
hindrance" with that duty where the assailant thinks his victim is
a mere private citizen, or indeed, a confederate in his criminal
activity.
To avoid this self-evident proposition, the Court effectively
overrules
Ladner and concludes that the assault statute
aims as much at protecting individual officers as it does at
protecting the functions they execute.
Ante at
420 U. S.
677-682. If the
Ladner Court had shared this
opinion, it would not have held, as it did, that a single
shotgun
Page 420 U. S. 706
blast wounding two federal agents was to be considered a single
assault. But, in any event, even today's revisionist treatment of
Ladner does not succeed in getting the Court where it
wants to go. So far as the
scienter requirement is
concerned, it makes no difference whether the statute aims to
protect individuals, or functions, or both. The Court appears to
think that extending § 111 to unknowing assaults will deter such
assaults -- will "give . . . protection . . . to the agent acting
under cover."
Ante at
420 U. S. 684.
This, of course, is nonsense. The federal statute "protects" an
officer from assault only when the assailant knows that the victim
is an officer. Absent such knowledge, the only "protection" is that
provided by the
general law of assault, for that is the
only law which the potential assailant reasonably, if erroneously,
believes applicable in the circumstances.
The Court also suggests that implication of a
scienter
requirement "would give insufficient protection to the agent
enforcing an unpopular law." This is to repeat the same error.
Whatever the "popularity" of the laws he is executing, and whatever
the construction placed on § 111, a federal officer is "protected"
from assault by that statute only where the assailant has some
indication from the circumstances that his victim is other than a
private citizen. Assuming,
arguendo, that Congress thought
that local prosecutors and judges were insufficiently enthusiastic
about trying cases involving assaults on federal officers, it
remains the fact that a federal statute proscribing
knowing assaults meets this concern in every case where
local attitudes might conceivably embolden the populace to
interfere with federal officers enforcing an "unpopular" law.
The fact is that there is absolutely no indication that, before
1934, local prosecutors and judges were lax in trying cases
involving assaults on federal officers, that Congress
Page 420 U. S. 707
thought. so, or -- and this is the major point -- that Congress
was so obsessed by the esoteric "problem" of unknowing assaults on
officers who, if known, would be unpopular, as to enact a statute
severely aggravated in penalty but blind to the common sense
distinction between knowing and unknowing assaults. The list of
covered officers was long and varied in 1934; it has since become
even more so. [
Footnote 2/14] I
can perceive no design to single out officers charged with the
execution of "unpopular" laws or given to using undercover
techniques. The Attorney General's letter [
Footnote 2/15] in support of the 1934 enactment
disavowed any criticism of the integrity or good faith of local law
enforcement authorities. He was at pains to stress that the
"Federal Government should not be compelled to rely upon the courts
of the States,
however respectable and well disposed. . .
." His particular concern was that,
"[i]n 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."
This is most reasonably read as a reference to the fact that,
absent some statute aggravating the offense, assault was and is
merely a misdemeanor -- a "police court" offense -- in many States.
To deal with this problem, the Attorney General sought enactment of
a federal aggravated assault statute, Congress obliged, and this
Court should give the statute its natural interpretation.
Turning from the history of the statute to its structure, the
propriety of implying a
scienter requirement becomes
manifest. The statute proscribes not only assault, but also a whole
series of related acts. It applies to any person who
"forcibly assaults,
resists, opposes, impedes,
intimidates, or
interferes with [a federal officer] .
. .
Page 420 U. S. 708
while engaged in or on account of the performance of his
official duties."
(Emphasis added.) It can hardly be denied that the emphasized
words imply a
scienter requirement. Generally speaking,
these acts are legal and moral wrongs only if the actor knows that
his "victim" enjoys a moral or legal privilege to detain him or
order him about. These are terms of art, arising out of the common
and statutory law proscribing obstruction of justice. [
Footnote 2/16] Indeed, in urging
enactment of § 254, the Attorney General referred to obstruction
statutes, having either express or implied
scienter
requirements, as an instructive analogue. [
Footnote 2/17] Whether it be express or implied,
scienter has always been regarded in this country as an
essential element of obstruction of justice.
Pettibone v.
United States, 148 U. S. 197,
148 U. S.
204-207. The sole innovation in § 111 is its protection
of executive officers and functions, rather than judicial officers
and functions. Obviously this distinction should have no effect on
the
scienter requirement.
If the words grouped in the statute with "assaults" require
scienter, it follows that
scienter is also
required for an assault conviction. One need hardly rely on such
Latin phrases as
ejusdem generis and
noscitur a
sociis to reach this obvious conclusion. The Court suggests
that assault may be treated differently, "with no risk of
unfairness," because an assailant -- unlike one who merely
"opposes" or "resists" -- "knows from the very outset that his
planned course of conduct is wrongful" even
Page 420 U. S. 709
though he "may be surprised to find that his intended victim is
a federal officer in civilian apparel."
Ante at
420 U. S. 685.
This argument will not do, either as a matter of statutory
construction or as a matter of elementary justice.
The Court is saying that, because all assaults are wrong, it is
"fair" to regard them all as
equally wrong. This is a
strange theory of justice. As the States recognize, an unknowing
assault on an officer is less reprehensible than a knowing assault;
to provide that the former may be punished as harshly as the latter
is to create a very real "risk of unfairness." It is not
unprecedented for Congress to enact stringent legislation, but
today it is the Court that rewrites a statute so as to create an
inequity which Congress itself had no intention of inflicting.
To treat assaults differently from the other acts associated
with it in the statute is a pure exercise in judicial legislation.
In
Ladner v. United States, 358 U.S. at
358 U. S. 176,
the Court noted that the "Government frankly conceded on the oral
argument that assault can be treated no differently from the other
outlawed activities." The Court characterized this concession
as
"necessary in view of the lack of any indication that assault
was to be treated differently, and in light of 18 U.S.C. § 111, the
present recodification of § 254, which lumps assault in with the
rest of the offensive actions,"
id. at
358 U. S. 176
n. 4. This analysis was not mere dictum, but strictly necessary to
the result reached in
Ladner. No contrary analysis can be
squared with the statutory history. [
Footnote 2/18]
Page 420 U. S. 710
The implication of
scienter here is as necessary and
proper as it was in
Morissette v. United States,
342 U. S. 246. The
Court there read a
scienter requirement into a federal
larceny statute over the Government's objection that the need for
scienter should not be implied for a federal offense when
the statute that created the offense was silent on the subject. The
Court said:
"Congressional silence as to mental elements in an Act merely
adopting into federal statutory law a concept of crime already so
well defined in common law and statutory interpretation by the
states may warrant quite contrary inferences than the same silence
in creating an offense new to general law, for whose definition the
courts have no guidance except the Act. . . ."
"
* * * *"
". . . [W]here Congress borrows terms of art in which are
accumulated the legal tradition and meaning of centuries of
practice, it presumably knows and adopts the cluster of ideas that
were attached to each borrowed word in the body of learning from
which it was taken and the meaning its use will convey to the
judicial mind unless otherwise instructed."
Id. at
342 U. S.
262-263. The same principle applies here. The terms and
purposes of § 111 flow from well defined and familiar law
proscribing obstructions of justice, and the provision
complements
Page 420 U. S. 711
a pattern of state aggravated assault statutes which are uniform
and unambiguous in requiring
scienter.
We see today the unfortunate consequences of deciding an
important question without the benefit of the adversary process.
[
Footnote 2/19] In this rush to
judgment, settled precedents,
Page 420 U. S. 712
such as
Ladner v. United States, supra, and
Pettibone v. United States, supra, are subverted.
Legislative history is ignored or imaginatively reconstructed.
Statutory terms are broken from their context and given unnatural
readings. On top of it all, the Court disregards two firmly
established canons of statutory construction -- "two wise
principles this Court has long followed":
"First, as we have recently reaffirmed, 'ambiguity concerning
the ambit of criminal statutes should be resolved in favor of
lenity.'
Rewis v. United States, 401 U. S.
808,
401 U. S. 812 (1971).
See also Ladner v. United States, 358 U. S.
169,
358 U. S. 177 (1958);
Bell v. United States, 349 U. S. 81 (1955);
United
States v. Five Gambling Devices, 346 U. S.
441 (1953) (plurality opinion for affirmance). . .
."
"
* * * *"
". . . [S]econd . . . : unless Congress conveys its purpose
clearly, it will not be deemed to have significantly changed the
federal-state balance. Congress has traditionally been reluctant to
define as a federal crime conduct readily denounced as criminal by
the States. . . . In traditionally sensitive areas, such as
legislation affecting the federal balance, the requirement of clear
statement assures that the legislature has, in fact, faced, and
intended to bring into issue, the critical matters involved in the
judicial decision."
United States v. Bass, 404 U.
S. 336,
404 U. S.
347.
If the Congress desires to sweep all assaults upon federal
employees into the federal courts, a suitable statute could be
easily enacted. I should hope that, in so doing,
Page 420 U. S. 713
the Congress, like every State which has dealt with the matter,
would make a distinction in penalty between an assailant who knows
the official identity of the victim and one who does not. That
result would have a double advantage over the result reached by the
Court today. It would be a fair law, and it would be the product of
the lawmaking branch of our Government.
For the reasons stated, I believe that, before there can be a
violation of 18 U.S.C. § 111, an assailant must know or have reason
to know that the person he assaults is an officer. It follows
a
fortiori that there can be no criminal conspiracy to violate
the statute in the absence of at least equivalent knowledge.
Accordingly, I respectfully dissent from the opinion and judgment
of the Court.
[
Footnote 2/1]
"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 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."
[
Footnote 2/2]
The petition seeks review of a judgment of the United States
Court of Appeals for the Ninth Circuit, affirming a substantive
conviction under 18 U.S.C. § 111.
United States v.
Fernandez, 497 F.2d 730
[
Footnote 2/3]
See, e.g., Cal.Penal Code §§ 241, 243, 245(b) (Supp.
1975); D.C.Code Ann. § 22-505 (1973); Ill.Rev.Stat., c. 38, §
12-2(a)(6) (1973); Mich.Comp.Laws § 750.479 (1970); Mo.Rev.Stat. §
557.215 (1969); N.J.Stat.Ann. § 2A:99-1 (1969); R.I.Gen.Laws Ann. §
11-5-5 (Supp. 1974); Tex.Penal Code §§ 22.02(a)(2) & (b)
(1974); Wis.Stat.Ann. § 940.205 (Supp. 1974-1975); Model Penal Code
§ 242.1 (Proposed Official Draft 1962).
[
Footnote 2/4]
See, e.g., People v. Baca, 247 Cal.
App. 2d 487, 55 Cal. Rptr. 681;
Celmer v. Quarberg, 56
Wis.2d 581,
203 N.W.2d
45.
[
Footnote 2/5]
See, e.g., People v. Glover, 257 Cal. App.
2d 502, 65 Cal. Rptr. 219;
People v. Litch, 4
Ill.App.3d 788, 281 N.E.2d 745;
State v. Lewis, 184 Neb.
111,
165 N.W.2d
569;
Ford v. State, 158 Tex.Cr. 26,
252
S.W.2d 948;
Celmer v. Quarberg, supra; Model Penal
Code § 242.1 (Proposed Official Draft 1962).
[
Footnote 2/6]
"Whoever shall forcibly resist, oppose, impede, intimidate, or
interfere with any person designated in section 253 of this title
while engaged in the performance of his official duties, or shall
assault him on 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; and whoever, in the commission of any of the
acts described in this section, shall use a deadly or dangerous
weapon shall be fined not more than $10,000, or imprisoned not more
than ten years, or both."
Act of May 18, 1934, c. 299, § 2, 48 Stat. 781.
[
Footnote 2/7]
The letter is reprinted by the Court,
ante at
420 U. S.
680-681, n. 16.
[
Footnote 2/8]
Act of May 18, 1934, C. 299, § 1, 48 Stat. 780, as amended, 18
U.S.C. § 1114. The original provision read:
"Whoever shall kill, as defined in sections 452 and 453 of this
title, any United States marshal or deputy United States marshal or
person employed to assist a United States marshal or deputy United
States marshal, any officer or employee of the Federal Bureau of
Investigation of the Department of Justice, post-office inspector,
Secret Service operative, any officer or enlisted man of the Coast
Guard, any employee of any United States penal or correctional
institution, any officer, employee, agent, or other person in the
service of the customs or of the internal revenue, any immigrant
inspector or any immigration patrol inspector, any officer or
employee of the Department of Agriculture or of the Department of
the Interior designated by the Secretary of Agriculture or the
Secretary of the Interior to enforce any Act of Congress for the
protection, preservation, or restoration of game and other wild
birds and animals, any officer or employee of the National Park
Service, any officer or employee of, or assigned to duty in, the
field service of the Division of Grazing of the Department of the
Interior, or any officer or employee of the Indian field service of
the United States, while engaged in the performance of his official
duties, or on account of the performance of his official duties,
shall be punished as provided under section 454 of this title."
18 U.S.C. § 253 (1940 ed.).
The list of officers has expanded. It now includes, in 18 U.S.C.
§ 1114:
"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 institution, any
officer, employee or agent of the customs or of the internal
revenue or any person assisting him in the execution of his duties,
any immigration officer, any officer or employee of the Department
of Agriculture or of the Department of the Interior designated by
the Secretary of Agriculture or the Secretary 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 any
function in connection with any Federal or State program or any
program of Puerto Rico, Guam, the Virginia Islands of the United
States, or the District of Columbia, for the control or eradication
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 the field service of
the Bureau of Land Management, any employee of the Bureau of Animal
Industry of the Department of Agriculture, or any officer or
employee of the Indian field service of the United States, or any
officer or employee of the National Aeronautics and Space
Administration directed to guard and protect property of the United
States under the administration and control of the National
Aeronautics and Space Administration, any security officer of the
Department of State or the Foreign Service, or any officer or
employee of the Department of Health, Education, and Welfare or of
the Department of Labor assigned to perform investigative,
inspection, or law enforcement functions."
[
Footnote 2/9]
Act of June 25, 1948, 62 Stat. 688.
[
Footnote 2/10]
See the Reviser's Note, H.R.Rep. No. 304, 80th Cong.,
1st Sess., A12 (1947). The minor provision consolidated with § 254
was 18 U.S.C. § 118 (1940 ed.), derived from the Act of Mar. 4,
1909, § 62, 35 Stat. 1100.
[
Footnote 2/11]
The Reviser's Note,
supra, 420
U.S. 671fn2/10|>n. 10, observed that the new § 111 adopted
the penalty provision of § 254 "as the latest expression of
Congressional intent."
[
Footnote 2/12]
18 U.S.C. § 455 (1926 ed.), derived from the Act of Mar. 4,
1909, § 276, 35 Stat. 1143.
[
Footnote 2/13]
See 420
U.S. 671fn2/8|>n. 8,
supra. The definitions of, and
penalties for, homicides within federal jurisdiction were set forth
in 18 U.S.C. §§ 452-454 (1926 ed.), derived from the Act of Mar. 4,
1909, § 273, 35 Stat. 1143. This was the same Act which established
the definitions of, and graded penalties for, assaults within
federal jurisdiction.
See 420
U.S. 671fn2/11|>n. 11,
supra.
[
Footnote 2/14]
See 420
U.S. 671fn2/8|>n. 8,
supra.
[
Footnote 2/15]
See 420
U.S. 671fn2/7|>n. 7,
supra.
[
Footnote 2/16]
Comparable language is used in the other federal obstruction of
justice statutes,
e.g., 18 U.S.C. §§ 1501-1505, 1507,
1509, 1752, 2231.
[
Footnote 2/17]
Title 18 U.S.C. § 245 (1926 ed.), mentioned in the Attorney
General's letter,
supra, 420
U.S. 671fn2/7|>n. 7, had an express
scienter
requirement. Title 18 U.S.C. § 121 (1926 ed.), also mentioned, had
long been judicially construed to require
scienter.
E.g., Gay v. United States, 12 F.2d 433, 434-435.
[
Footnote 2/18]
As noted earlier, the 1934 version of the statute, proscribed
assault on a federal officer only when perpetrated "
on account
of the performance of his official duties." (Emphasis added.)
See 420
U.S. 671fn2/6|>n. 6,
supra. By contrast, the other
acts in 18 U.S.C. § 254 (1940 ed.), were proscribed so long as the
officer was "engaged in the performance of his official duties."
The mental element for assault was more, not less, stringent than
for the other acts. In the 1948 recodification, this asymmetry was
eliminated, to allow consolidation of the 1934 statute with a minor
provision enacted in 1909. Now each of the acts is proscribed if
committed upon an officer engaged in performance of his duties or
if committed "on account" of his performance of duty. It would be
utterly farfetched to suggest that this technical alteration,
aiming toward symmetry, was intended to create a difference
concerning the
scienter requirement as between assaults
and the other acts listed with it in § 111.
[
Footnote 2/19]
The Court seems to be emboldened by the rough consensus among
the Courts of Appeals that the victim status elements in § 111 is
jurisdictional only.
Ante at
420 U. S. 677
n. 12. But this consensus is both very recent and very shaky. The
federal courts continue to complain that the "substantial number of
prosecutions under this statute" has resulted in "disagreement in
the cases" regarding the
scienter question.
United
States v. Perkins, 488 F.2d 652, 654;
see also United
States v. Chunn, 347 F.2d 717, 721. The fact is that, until
1964, the federal courts were virtually unanimous the other way --
that is, in holding or assuming that proof of
scienter was
required for the offense of obstructing or assaulting a federal
officer.
E.g., Hall v. United States, 235 F.2d 248;
Carter v. United States, 231 F.2d 232,
cert.
denied, 351 U.S. 984;
Owens v. United States, 201
F.2d 749;
Hargett v. United States, 183 F.2d 859;
Sparks v. United States, 90 F.2d 61;
United States v.
Bell, 219 F.
Supp. 260;
United States v. Page, 277 F. 459;
United States v. Taylor, 57 F. 391;
United States v.
Miller, 17 F.R.D. 486. The turning point was
United States
v. Lombardozzi, 335 F.2d 414,
cert. denied, 379 U.S.
914, which eliminated the
scienter requirement on the
historically erroneous ground that Congress had enacted the
provision merely to transfer to the federal courts a class af
assault cases out from under the untrustworthy state courts and
prosecutors' offices.
Lombardozzi was promptly followed,
with little or no fresh analysis, in nearly every Circuit. Just as
promptly, however, second thoughts have emerged. The Ninth Circuit
has recently acknowledged that
Lombardozzi was unsoundly
premised.
United States v. Fernandez, 497 F.2d at 736-739.
In her concurring opinion in
Fernandez, Judge Hufstedler
strongly argued the desirability of reexamining the entire
question,
id. at 740-747. A number of Courts of Appeals
have felt constrained to limit
Lombardozzi by making
distinctions between the
scienter requirement for assault
and for the other acts proscribed by § 111, distinctions directly
at odds with the history of the provisions and with
Ladner v.
United States, 358 U. S. 169,
358 U. S. 176.
See, e.g., United States v. Perkins, supra, at 654-655;
United States v. Ulan, 421 F.2d 787, 789-790;
United
States v. Goodwin, 440 F.2d 1152, 1156;
United States v.
Young, 464 F.2d 160, 163. Having acted hastily, the Courts of
Appeals are only now appreciating the need for reconsideration.
Acting with even greater haste, the Court today bids fair to insure
that the issue will be forever sealed.