United States v. Hubert H. Williams, JR., 604 F.2d 277, 4th Cir. (1979)

604 F.
2d 277
UNITED STATES of America, Appellee,

v.
Hubert H. WILLIAMS, Jr., Appellant.
No. 77-1657.
United States Court of Appeals,

Fourth Circuit.
Argued March 9, 1979.
Decided July 25, 1979.
Dwight F. Drake, Columbia, S. C., for appellant.

Thomas P. Simpson, Asst. U. S. Atty., Columbia, S. C. (Thomas E.
Lydon, Jr., U. S. Atty., Columbia, S. C., on brief), for appellee.
Before WIDENER and PHILLIPS, Circuit Judges, and DUMBAULD,*
Senior District Judge.
WIDENER, Circuit Judge:
The defendant, Hubert H. Williams, Jr., was convicted by a jury of assaulting a

Deputy United States Marshal in violation of 18 U.S.C. 111.1 At trial, the
defendant sought a jury instruction that knowledge that the victim was a federal
officer is a necessary element of the offense without which he might not be
convicted. The district court denied the defendant's request, and instead charged
the jury that knowledge was irrelevant for a conviction under 18 U.S.C. 111.
The defendant appeals, charging that the district court erred in its charge that
knowledge of the victim's identity was irrelevant. We affirm.
The defendant was being sought by the United States Marshal in Columbia,
South Carolina, who was attempting to serve a civil summons and complaint
upon him.2 Numerous unsuccessful attempts had been made to serve the papers
on the defendant. On Saturday, December 4, 1976, Deputy Marshal Walen L.
Lamb sought to serve the defendant by going to the defendant's home in
Columbia. Although he had previously heard noises in the house, Lamb
received no response upon approaching the house and identifying himself.
Lamb then went to the home of the defendant's parents, where he learned that
the defendant worked out of the state during the week and that he was only in
Columbia on weekends. Lamb also learned that the defendant would be flying
out of Columbia the following day.
3
Lamb next went back to the defendant's home, only to learn that the defendant
was still not at home. Local police officers came to the home, however,
answering a prowler complaint filed by the defendant's wife. Lamb identified
himself to the police officers and explained his purpose for being there. The
city officers then attempted to get someone to come out of the house to speak
with the deputy marshal but no one would.
The next day, December 5, 1976, the defendant learned from his wife of the
events that transpired the previous evening. As a result, the defendant sent a
telegram to the U. S. Marshal advising him to stop being belligerent to his
parents and his family. Shortly thereafter, the defendant proceeded to the
Columbia airport to catch his flight out of town.
That same day, Deputy Marshal Lamb proceeded to the Columbia airport to
again attempt to serve the defendant. Lamb, who had never seen the defendant
before, made arrangements with the ticket agent, who was to advise him when
the defendant approached the ticket counter to be checked into his flight. Two
men soon approached the ticket counter. Lamb misread the agent's signal and
approached the latter of the two men. Upon learning from that man that he had
approached the wrong man, Lamb then proceeded in the direction of the
defendant who by this time was walking in the opposite direction toward the
flight gates. Lamb had the civil papers in one hand and his credentials in the
other. Approaching the defendant from the rear, Lamb tapped the defendant on
the right shoulder with the papers. The defendant then spun around and struck
the officer in the chest. A local police officer, after seeing the incident, assisted
Lamb in arresting the defendant.
At trial the defendant testified that the officer spun him around, causing him to
lose his balance, and that he fell into the officer. He denied striking the deputy
marshal. He also testified that the deputy marshal did not identify himself and
did not have his credentials in hand.
At the end of the prosecution's proof, the defendant moved for acquittal on the
ground that the prosecution had not proven all the essential elements of the
crime because it had not proven that the defendant knew that the individual he
struck was a deputy marshal. The court denied the defendant's motion. The
case was submitted to the jury under the instruction that knowledge of the
victim's identity was irrelevant. The defendant objected to this charge on the
ground that knowledge is an element of the offense. The defendant requested
no additional charges. A verdict of guilty was returned by the jury. The
defendant argues that knowledge as to the identity of the victim is an essential
element of the offense and therefore must be proven by the prosecution. We
disagree.
8
As a general rule, knowledge as to the identity of the victim is unnecessary for

a conviction under 18 U.S.C. 111. United States v. Feola, 420 U.S. 671, 95
S.Ct. 1255, 43 L.Ed.2d 541 (1974). In certain circumstances, however,
knowledge may be a relevant consideration if it goes to disproving the
necessary element of mens rea. The Court in Feola stated:
9
"We
are not to be understood as implying that the defendant's state of mind 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
reasonably be justified in exerting an element of resistance, and an honest mistake of
fact would not be consistent with criminal intent."
420 U.S. at 686, 95 S.Ct. at 1264. 3
10
18 U.S.C. 111 was not enacted only as a counterpart to state laws requiring
increased punishment for assaulting a peace officer where a defendant must
know that his victim is an officer. Instead 111 was also designed to provide a
federal forum for the trial of offenses involving federal officers. Requiring
knowledge as an element of the crime, for example, would provide no
protection for federal agents acting under cover. This offense was designed to
protect both the federal officer and the law enforcement activities in which he is
involved.4
11
In the instant case, had the evidence and his theory of the case suggested it, the
defendant upon request might well have been entitled to a jury instruction
relating to the exception set forth in Feola. But no such theory of defense was
pursued; instead, the defendant took the untenable position that knowledge is
an element of the offense in each instance and therefore no request need be
made.
12
The charge urged by the government and given by the district court was too
broad upon the theory of the case now urged by the defendant in that it stated
that knowledge was irrelevant. The defendant's suggested charge is equally too
extreme on that theory in that he contended that knowledge as to the identity of
the victim is an element of the offense and the absence of it should require
acquittal.
13
The correct interpretation lies between these two extremes. Knowledge may in
certain circumstances be relevant if it relates to the existence of the necessary
mens rea to justify a criminal conviction. If the defendant felt that the
circumstances here brought this exception into play, he could have urged that
defense, but he did not.
14
Unlikely as it may seem in view of the record in this case, the jury could have
believed from the defendant's acts (as described by the marshal), in contrast to
the defendant's testimony, that the officer failed to identify himself and that the
officer used unlawful force on the defendant, which force the defendant
instinctively or justifiably resisted.5 Therefore, had the case been tried on that
theory, an instruction would have been proper taken from the above quoted
language from Feola. But the defendant did not choose that as an alternate
theory of defense. Rather, he chose to defend the case on the theory that the
entire occurrence was an accident and that he did not strike the officer at all.
This was also a perfectly tenable theory from the testimony of the defendant.
15
While we do not hold or suggest that a criminal defendant may not adopt
alternative defenses, even inconsistent ones, this defendant did not. He chose to
try the case on the basis that his interference with the officer was accidental
and that he did not strike the officer. We think the defense from Feola, that the
defendant might reasonably be justified in asserting an element of resistance to
an unlawful use of force directed at himself or his property, or that he had
committed an honest mistake of fact in striking an officer, is in the nature of an
affirmative defense which must be asserted in some manner at some point
during the trial. Here, the defendant did argue the Feola exception, as it applies
under a theory of self-defense, during his motion for acquittal outside the
presence of the jury. This argument, however, was at the close of the
government's evidence, when there was no evidence in the case to indicate
mistake or self-defense. The defendant, moreover, never presented any
testimony to support such a defense to the jury, but, in fact, based his entire
defense upon the notion that the incident was an accident.
16
Thus, on the theory of the case adopted by the defendant, that the whole affair
was accidental, the instruction of the district court is not erroneous for it
complies with the holding in Feola that knowledge of the identity of the officer
is irrelevant.6
17
To give the defendant the benefit of the doubt, we consider that he argues on
appeal that a trial court should give a charge, based on the earlier quoted
language from Feola, in any case and that failure to do so is plain error. We do
not agree. We do not believe it is plain error for a trial court to fail to instruct a
jury on an optional defense when the testimony of the defendant himself is
inconsistent with the defense offered. We have taken into account the testimony
of the defendant that he did not strike the officer and the fact that he chose not
to raise this theory of defense at trial. FRCrP 30, 52(b). See Kotteakos v.
United States, 328 U.S. 750, 758-766, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).
18
While the trial court is under a duty to instruct the jury on all of the elements of
an offense in a criminal trial,7 it is certainly not required to instruct the jury on a
defense the theory of which is not even supported by the testimony of the
defendant adduced at trial. Wright & Miller, 2 Fed. Prac. & Proc. 485 (1969);
United States v. Garner, 529 F.2d 962 (6th Cir. 1976). See also United States v.
Swallow, 511 F.2d 514 (10th Cir. 1975).
19
Accordingly, the judgment of the district court is affirmed.8
20
AFFIRMED.
United States District Court, Western District of Pennsylvania, sitting by

designation
18 U.S.C. 111 provides in pertinent part:

"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
$5000 or imprisoned not more than three years, or both."
18 U.S.C. 1114 provides in part that any such person may be:
". . . any United States marshal or deputy marshal or person employed to assist
such marshal or deputy marshal, . . ."
The defendant along with his father, Hubert H. Williams, Sr., were being sued
civilly by the Small Business Administration. Both complaints and summons

were issued on October 15, 1976. Hubert Williams, Sr., was served in October
3
See also the pre-Feola cases of United States v. Perkins, 488 F.2d 652, 654-55
(1st Cir. 1973); United States v. Goodwin, 440 F.2d 1152, 1156 (3d Cir. 1971);
and United States v. Ulan, 421 F.2d 787, 789-90 (2d Cir. 1970)
For a discussion of the legislative history of 18 U.S.C. 111, see United States
v. Feola, 420 U.S. 671, 677-84, 95 S.Ct. 1255, 43 L.Ed.2d 541
In his testimony, the defendant denied striking the officer. Instead, he testified
that the whole incident was an accident resulting from his losing his balance
and falling into the officer. The defendant's mother also testified that she did
not see her son strike the officer, as did two other witnesses called by the
defendant. The inference sought to be drawn, of course, was that Williams did
not strike the marshal
We had held prior to Feola, in United States v. Wallace, 368 F.2d 537 (4th Cir.
1966), that knowledge was not an essential element of the crime
United States v. Harris, 346 F.2d 182 (4th Cir. 1965)
Because the testimony of the defendant in United States v. Young, 464 F.2d
160 (5th Cir. 1972), was consistent with mistake, we do not think that case,
holding it plain error to omit a knowledge instruction, is inconsistent with our
holding. So far as the two cases may be read as inconsistent, however, with
respect, we simply disagree

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604 F.

UNITED STATES of America, Appellee,

United States Court of Appeals,

Dwight F. Drake, Columbia, S. C., for appellant.

The defendant, Hubert H. Williams, Jr., was convicted by a jury of assaulting a

As a general rule, knowledge as to the identity of the victim is unnecessary for

Accordingly, the judgment of the district court is affirmed.8

United States District Court, Western District of Pennsylvania, sitting by

18 U.S.C. 111 provides in pertinent part:

civilly by the Small Business Administration. Both complaints and summons

United States v. Harris, 346 F.2d 182 (4th Cir. 1965)

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