UNITED STATES OF AMERICA, APPELLEE,
v.
STEPHEN A. MAYNARD ET AL., DEFENDANTS, APPELLANTS
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Knowledge of the victim's identity as a federal officer is not an element of the offense of assaulting a federal officer, and a jury may infer that a gun displayed during an assault was loaded.
Defendants attempted to rob a federal undercover officer during a drug deal, were arrested, and convicted of assaulting a federal officer with a dange…
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PER CURIAM.
Defendants, who had agreed to exchange hashish for cash, sought to take the cash at gunpoint without making the promised delivery. They made the mistake of selecting a federal undercover officer for their victim, and were promptly arrested by a surveillance team. At the trial for assaulting a federal officer with a dangerous weapon, 18 U.S.C. § 111, it did not appear whether or not the gun was loaded. The defendants moved for acquittal. They also sought an instruction to the effect that if they had been misled as to their victim’s identity and did not know he was a federal officer, they should be acquitted. The court refused both requests, and following conviction they appeal.
Knowledge of the officer's identity is not necessary to convict. United States v. Goodwin, 3 Cir., 1971, 440 F. 2d 1152, and cases cited therein at 1155. See also our discussion in United States v. Langone, 1 Cir., 1971, 445 F. 2d 636, cert. denied 404 U.S. 915, 92 S.Ct. 226, 30 L.Ed.2d 189 (1971). To hold the statute, manifestly intended to give the special protection of the federal courts to federal employees in dangerous occupations, inapplicable to undercover agents who affirmatively concealed their identity, would seriously affect its usefulness. Since knowledge is immaterial, defendants have even less reason to complain of having been misled than in Lewis v. United States, 1966, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (undercover agent given consent to enter).
With respect to whether the gun was loaded, since assault is the act of putting in fear, it might be thought enough that the weapon was ostensibly dangerous. See Ladner v. United States, 1958, 358 U.S. 169, 177, 79 S.Ct. 209, 3 L.Ed.2d 199.* But in any event, we agree with those cases which permit the jury to make the natural inference that a person who draws a gun would not do so if he was not in a position to use it if, in his opinion, it became necessary. United States v. Marshall, 2 Cir., 1970, 427 F. 2d 434, 437; Morrow v. United States, 8 Cir., 1969, 408 F. 2d 1390, 1391; Evalt v. United States, 9 Cir., 1967, 382 F. 2d 424, 428.
Affirmed.
*
But see Bradley v. United States, 8 Cir., 1971, 447 F. 2d 264, 272 (simulated bomb), in which Chief Judge Aldrich’s concurrence was, although not so expressed, in the result and not necessarily in the opinion.
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Citator
Cited By
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United States v. Lemon, 497 F.2d 854 (10th Cir. 1974)
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United States v. Perkins, 488 F.2d 652 (1st Cir. 1973)
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United States v. Michalek, 464 F.2d 442 (8th Cir. 1972)
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lewis v. United States, 385 U.S. 206 (U.S. 1966)
- Ladner v. United States, 358 U.S. 169 (U.S. 1958)
- Anton Vaughn Evalt v. United States, 382 F.2d 424 (9th Cir. 1967)
- United States v. Marshall, 427 F.2d 434 (2d Cir. 1970)
- United States v. Goodwin, 440 F.2d 1152 (3d Cir. 1971)
- Bradley v. United States, 447 F.2d 264 (8th Cir. 1971)
- Eloyd Morrow v. United States, 408 F.2d 1390 (8th Cir. 1969)
- United States v. Langone, 445 F.2d 636 (1st Cir. 1971)
- Funchess v. South Carolina, 404 U.S. 915 (U.S. 1971)
- Hoover Acad., Inc. v. Wright, 404 U.S. 915 (U.S. 1971)