FBI Investigative Jurisdiction Over Threats or Acts Against Federal Officers Not Covered by 18 U.S.C. §§ 111 and 114 ( 1977 )

D ecem ber 14, 1977
77-68 MEMORANDUM OPINION FOR THE
ATTORNEY GENERAL
Conspiracy to Impede or Injure an Officer of the
United States, 18 U.S.C. § 372You have requested our opinion concerning the investigative jurisdic­
tion of the Federal Bureau of Investigation (FBI) over threats or acts
against Federal officers not covered by 18 U.S.C. §§111 and 114
(assaulting or killing Federal officers) or 18 U.S.C. § 351 (congressional
assassination, kidnaping, and assault). Specifically, the inquiry is: (1)
w hether 18 U.S.C. § 372 can be considered as an independent source of
the F B I’s investigative jurisdiction; (2) who is to be deemed to come
within the statutory language “officer of the United States” in § 372;
and (3) whether authority exists to investigate individual acts not com­
mitted pursuant to a conspiracy of the sort made criminal by this
provision.
1. The FB I’s Investigative Jurisdiction
Conspiring to impede o r injure a Federal officer is forbidden under
Federal law; as a “crime against the United States,” it is encompassed
by the FB I’s investigative jurisdiction set forth in 28 U.S.C. § 533(1).
See, also 28 C FR § 0.85(a)(1976).
Although under § 372 conspiracy has, in the past, generally been
charged only in prosecutions also encompassing a substantive offense
such as assault, see, Murphy v. United States, 481 F. 2d 57 (8th Cir.
1973), United States v. Barber, 429 F. 2d 1394 (3d Cir. 1970), United
States v. Burgos, 328 F. 2d 109 (2d Cir. 1964), § 372 demands no such
limitation. Conspiracy is a distinct and independent crime whose ele­
ments differ from those o f the underlying offense.
United States v. Callanan, 365 U.S. 587, 593 (1961). The commission
of a completed substantive offense is not required to support a conspir­
acy charge. United States v. Jasso, 442 F. 2d 1054 (5th Cir.) cert, denied,
404 U.S. 845 (1971). The legislative history of § 372, discussed below, in
no way suggests that prosecution for this form of conspiracy need vary
from the general rule.
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Investigative jurisdiction will therefore be sustained so long as a
violation of § 372 has clearly occurred or is reasonably suspected, even
without the existence of some other Federal offense arising out of the
same facts.
2. The Meaning of “Officer”
Section 372 provides as follows:
If two or more persons in any State, Territory, Possession or
District conspire to prevent, by force, intimidation, or threat, any
person from accepting or holding any office, trust, or place of
confidence under the United States, or from discharging any duties
thereof, or to induce by like means any officer of the United States
to leave the place where his duties as an officer are required to be
performed, or to injure him in his person or property on account
of his lawful discharge of the duties of his office, or while engaged
in the lawful discharge thereof, or to injure his property so as to
molest, interrupt, hinder or impede him in the discharge of his
official duties, each of such persons shall be fined not more than
$5,000 or imprisoned not more than six years, or both.
Although this provision is more than 100 years old, it has been infre­
quently used. Most reported cases have involved internal revenue
agents whose efforts to track down tax-evading operators of illegal stills
met with resistance, see, e.g„ United States v. Hall, 342 F. 2d 849 (4th
Cir.) cert, denied, 382 U.S.' 812 (1965); United States v. Barber, 303 F.
Supp. 807 (D. Del. 1969), affd, 442 F. 2d 517 (3d Cir. 1971), cert,
denied, 404 U.S. 846 (197.1). Nor have there been any significant inter­
pretations o f 42 U.S.C. § 1985(1), § 372’s civil counterpart, which con­
tains comparable language.
However, the term “office” has been repeatedly defined with regard
to its use in Article I, § 9 and Article II, §§ 2 and 3 of the Constitution.
The Supreme Court in United States v. Hartwell, 6 Wall. 385, 393
(1867), provided the following definition: “An office is a public station,
or employment, conferred by the appointment of government. The
term embraces the ideas of tenure, duration, emolument, and duties.”
A t other times, the term has been quite narrowly confined to the
constitutional context, and a distinction has been drawn between an
“officer” and an “employee.” See, Burnap v. United States, 252 U.S. 512(1920). Although these interpretations provide a starting point for anal­
ysis, they are not to be narrowly applied when a statutory scheme
evidences the intent of Congress that a broader meaning was intended.
Steele v. United States, 267 U.S. 505, 507 (1925). In that case, for
example, the term “officer” was held to include deputy marshals and
deputy collectors of customs. See also 40 Op. A tt’y Gen. 294, 299
(1943).
Although the § 372 formulation, “any office, trust, or place of confi­
dence,” bears a strong resemblance to that found in Article I, § 9 (“any
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office of Profit or Trust”), a review of the legislative history o f the
section indicates that a reading broader, than that demanded by the
constitutional usage must prevail. When first enacted in 1861, the provi­
sion relating to officers had a somewhat abbreviated form (“if two or
more persons . . . shall conspire together . . . by force, or intimidation,
or threat, to prevent any person from accepting or holding any office,
or trust, or place of confidence, under the United States . . . [they]
shall be guilty o f a high crime . . .).” Objection to the multifaceted
conspiracy bill, of which this provision was a part, centered on its
application to conspiracies to overthrow the Government of the United
States; to wit, opponents saw the measure as circumventing the consti­
tutional strictures on treason prosecutions. Senator Trumbull, in defend­
ing the bill, stressed that its purpose was “to punish persons who
conspire together to commit offenses against the United States,” and
cited interference with a land agent, a postmaster, and railroad route
agents to show the need for the legislation, 56 Cong. Globe, 37th
Cong., 1st Sess. 277 (1861). The provision was reenacted in a more
expanded form as part of the 1871 post-Civil W ar effort to enforce the
Fourteenth Amendment and to end Ku Klux Klan terrorism. Intro­
duced as an amendment in much its final form after criticism of an
initial formulation that sought to bring prosecution of most State crimes
within Federal jurisdiction, the measure was designed to protect Feder­
al officers by providing for Federal prosecution whenever they were
injured because of or in the course of their duties. Unlike the more
general conspiracy provision, 18 U.S.C. § 371, that was enacted in
much its present form in 1867, § 372 did not even contain a requirement
that an overt act be done in furtherance of the conspiracy before the
conspiratorial conduct would become actionable. The broad purpose of
protecting the Federal presence as fully as possible therefore supports a
broad, rather than narrow, reading of the word “office.”
Giving effect to this intention, it is our opinion that the term “offi­
cer” appearing in 18 U.S.C. § 372 includes both permanent and tempo­
rary, full- and part-time officers and employees of the United States.
Ambassador A a jortiori comes within this definition, for Article II, § 2
o f the Constitution requires the President to appoint, with the advice
and consent of the Senate, “Ambassadors, other public Ministers and
Consuls, Judges of the Supreme Court, and all other Officers of the
United States . . . .” [Emphasis added.]
3. Individual Acts N ot Committed Pursuant to a Conspiracy
The assault on a Federal officer statute, 18 U.S.C. §111, and the
related homicide provision, 18 U.S.C. § 114, make criminal under Fed­
eral law attacks on only certain classes of Federal employees. Although
a broader provision protecting “any civil official, inspector, agent or
other officer or employee of the United States” was proposed by the
A ttorney General and passed by the Senate in 1934, the current patch­
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work pattern of coverage was deliberately retained following confer­
ence deliberations and the provision was instead amended so that it
would apply to additional classes of personnel (customs and internal
revenue officers, immigration inspectors, and immigration patrol inspec­
tors). See H.R. Rep. No. 1593, 73d Cong., 2d Sess. (1934). In view of
this clear refusal to broaden the coverage of the assault provision,
application of § 111 to individual action against unenumerated classes of
Federal officers cannot be justified. We are unaware of any other
statutory authorization for investigative jurisdiction unless some other
Federal offense also is involved. Within the context of your inquiry, we
note that the most likely such offense would be violation o f 18 U.S.C.
§ 245(b)(1).
John M. H armon
Assistant Attorney General
Office o f Legal Counsel
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