United States v. Reed

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2004
_____________________
Charles R. Fulbruge III
No. 03-10005 Clerk
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
MALICH CHIKE REED,
Defendant - Appellee.
_____________________
No. 03-10060
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MALICH CHIKE REED,
Defendant - Appellant.
_________________________________________________________________
Appeals from the United States District Court
for the Northern District of Texas
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
PER CURIAM:
Malich Chike Reed robbed a federally insured bank and shot at
or attempted to shoot at a Dallas police officer as he fled. A
jury convicted Reed of, inter alia, assault and attempted murder of
an officer assisting a federal officer under 18 U.S.C. §§ 111 and
1114 and related federal firearms charges. The district court
acquitted Reed on the above charges, the government appealed, and
Reed cross-appealed. We affirm the judgment of acquittal because
there is insufficient evidence upon which a rational jury could
find that the Dallas officer was assisting a federal officer.
I
On April 23, 2002, Reed robbed a federally insured bank. He
fled the scene, carrying a white plastic bag containing $2,248 and
an electronic tracking device. Dallas police officer Ronald Hubner
was patrolling the North Dallas area when he heard a police-radio
report of the bank robbery. Hubner discerned that Reed was
traveling on a nearby road and began a high-speed pursuit.
While Officer Hubner was pursuing Reed, unit “1187” announced
on the Dallas Police Department (“DPD”) radio frequency its
involvement in the chase. This identification number is assigned
to Dallas Police Detective John Westphalen, who is a member of a
Joint Violent Crimes Task Force composed of officers from the
Dallas, Mesquite, and Irving police departments as well as members
of the FBI. The primary responsibility of the task force is to
coordinate investigations of bank robberies in the Dallas
metropolitan area; its members investigate approximately 100 bank
robberies a year. Although the DPD is often responsible for
pursuing robbery suspects, the suspects are usually turned over to
the FBI, and nearly all face prosecution in federal court.
Immediately before involving himself in Reed’s pursuit,
Westphalen, along with FBI Special Agent Sean Joyce, had met with
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an informant in a Dallas-area hotel on an unrelated matter. After
the meeting, Westphalen and Joyce returned to Westphalen’s vehicle.
Joyce accompanied Westphalen as he drove away from the hotel, and
they then heard the robbery report come across the police radio.
Meanwhile, Hubner followed Reed as he drove through northern
Dallas. Reed eventually stopped his car in a residential
neighborhood, where Hubner saw him exit the vehicle carrying a
semi-automatic pistol and a white plastic bag. Hubner exited his
police cruiser, drew his weapon, and chased Reed on foot between
two houses and over two fences. While running, Reed pointed his
weapon at Officer Hubner and either fired or attempted to fire it
three times; Hubner shot back on each occasion. After Hubner’s
third shot, Reed threw his weapon on the ground, raised his hands
in the air, and surrendered. Within a few seconds, two DPD
officers arrived and assisted Hubner with the arrest.
Sometime thereafter, Westphalen and Joyce drove into the alley
where Reed was arrested. They approached Reed and asked him to
identify himself, but he refused to cooperate with them.
Westphalen then used a hand-held detector to recover the electronic
tracking device from the bag of stolen money, which Reed had
discarded under a nearby vehicle during the foot chase. It is not
clear from Westphalen’s testimony whether Joyce accompanied him as
he tracked down the discarded bag of money.
In July 2002, Reed was indicted for the following federal
crimes: (1) bank robbery in violation of 18 U.S.C. § 2113(a) and
3
(d) as well as both (2) the assault and (3) the attempted murder of
Hubner, while Hubner assisted “police officers assigned to the
Dallas Federal Bureau of Investigation Violent Crimes Joint
Fugitive Task Force” and “Special Agents of the Federal Bureau of
Investigation then engaged in the performance of their official
duties,” in violation of 18 U.S.C. §§ 111 and 1114. Additionally,
Reed was charged with three counts of using, carrying, and
possessing a firearm during a crime of violence (one count for each
of the three crimes listed above).
The case proceeded to jury trial. At the close of the
government’s case, Reed moved for acquittal under Rule 29 of the
Federal Rules of Criminal Procedure. The district court denied the
motion, and the jury found Reed guilty of all six offenses.
Six days later, the district court indicated that it would
reconsider, sua sponte, Reed’s motion for acquittal on the assault,
attempted murder, and accompanying firearms charges. In an
extensive written memorandum, the court asked the parties to
identify, from the record, the membership and mandate of the joint
Violent Crimes Task Force and also to brief whether a member of
this task force qualifies as an officer or employee of the United
States for the purposes of 18 U.S.C. §§ 111 and 1114. The court
further asked both parties whether Hubner had to know that he was
assisting a federal officer and whether federal officials had to
4
exert control over Hubner’s actions for him to be covered by the
federal statutes.
After the parties filed their responses, the court entered a
judgment of acquittal for Reed on the non-bank robbery charges,
concluding that the evidence did not demonstrate, beyond a
reasonable doubt, either (1) that Joyce was an active participant
in the pursuit of Reed or (2) that Westphalen’s status as a joint
task force member made him a federal officer for the purposes of 18
U.S.C. §§ 111 and 1114. Specifically, the court set aside the jury
verdicts on counts 3 and 5, assault on and attempted murder of
Officer Hubner while he was assisting federal officers under 18
U.S.C. §§ 111 and 1114, and counts 4 and 6, using, carrying, and
brandishing a firearm during the crimes of violence charged in
counts 3 and 5, under 18 U.S.C. § 924(c). The government appealed.
After Reed was sentenced on the bank robbery counts, he also filed
a notice of appeal, and the two appeals were consolidated.
II
We review a judgment of acquittal de novo, applying the same
standard as the district court. United States v. Loe, 262 F.3d
427, 432 (5th Cir. 2001). We must reverse the judgment of
acquittal if “a reasonable jury could conclude that the relevant
evidence, direct or circumstantial, established all of the
essential elements of the crime beyond a reasonable doubt when
viewed in the light most favorable to the verdict.” Id.5
The government argues that the district court erred in finding
that Agent Joyce was “simply along for the ride as he and
Westphalen traveled to the scene of the arrest” and, therefore, was
not an active participant in pursuing Reed.1 Although the
government appeals the district court’s judgment of acquittal
regarding both the assault and attempted murder charges, the issue
for both charges is the same: Whether the evidence before the
jury, which we have described above, is sufficient to support a
finding that the Dallas police officer, Hubner, was “assisting” the
FBI agent, Joyce, for purposes of § 111 and § 1114 before or during
the time that Reed assaulted and attempted to kill Hubner. To
resolve this evidentiary question, we first consider the statute to
see what proof is necessary.
The assault statute, § 111, explicitly protects the same
persons described in § 1114, the attempted murder statute. See 18
U.S.C. § 111 (“Whoever . . . forcibly assaults, resists, opposes,
1
Although the government argues that other members of the
Violent Crimes Task Force and the FBI were involved in the
investigation during Officer Huber’s pursuit of Reed, the district
court found that no evidence supporting this contention was
presented during the trial. The record confirms that a bank
employee, Christopher Robertson, testified that he spoke to law
enforcement officers, including employees of the FBI, after the
robbery. A second bank employee, Heather Jones, also testified
that police officers, followed by the FBI, came to the bank after
the robbery and that the FBI conducted the robbery investigation.
Neither employee, however, indicated how much time elapsed between
the robbery and the FBI investigation. If it took more than
fifteen minutes for the FBI to arrive, then those events occurred
after Reed assaulted and attempted to murder Officer Hubner.
Therefore, the district court correctly concluded that the evidence
was insufficient to support the government’s argument.
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impedes, intimidates, or interferes with any person designated in
section 1114 of this title while engaged in or on account of the
performance of official duties” has committed a crime) (emphasis
added). Section 1114 states, in relevant part, that:
Whoever kills or attempts to kill any officer
or employee of the United States or of any
agency in any branch of the United States
Government (including any member of the
uniformed services) while such officer or
employee is engaged in or on account of the
performance of official duties, or any person
assisting such an officer or employee in the
performance of such duties or on account of
that assistance, shall be punished. . . .
18 U.S.C. § 1114 (emphasis added).2
Parsing the language of the statutes, we first observe that
the offense is to assault or attempt to kill any person assisting
a federal officer in the performance of his duties. We recall the
facts here: At the time Reed fired or attempted to fire a gun at
Hubner, Joyce was traveling to the scene of the crime. There is no
dispute that Reed assaulted and attempted to kill Hubner, or that
Joyce was a federal officer. The question then is whether, within
the meaning of the statute, Hubner, who was pursuing Reed when the
2
As the district court set aside the convictions under both
statutes on the ground that there was insufficient evidence to
demonstrate that Officer Hubner was “assisting” an “officer or
employee of the United States” during the assault and attempted
murder, this Court’s interpretation of § 1114's scope will apply
equally to both charges, as well as to the accompanying firearms
charges. See United States v. Feola, 420 U.S. 671, 684 n.18 (1975)
(stating, with respect to §§ 111 and 1114, “we have before us one
bill with a single legislative history, and we decline to bifurcate
our interpretation” of the meaning of the two statutes).
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assault/attempt occurred, was “assisting” Joyce, who, in his
official capacity as an FBI agent, was riding in the car on his way
to the crime scene. It seems significant in determining whether
Hubner was assisting Joyce at the time of the assault/attempt that
Joyce arrived after Reed’s assault/attempt to kill Hubner and after
Hubner arrested Reed. The crimes here are assaulting and
attempting to kill a police officer who is assisting an FBI agent.
As “assist” is not defined in § 1114, we first look to its
plain meaning. See, e.g., United States v. Vargas-Duran, 356 F.3d
598, 602 (5th Cir. 2004) (en banc). The meaning of “assist” does
not vary across broad-based English-language dictionaries.
According to Webster’s Dictionary, the transitive verb “assist”
means “to give support or aid . . . in some undertaking or effort”
or “to perform some service for” the object of the assistance.
Webster’s Third New International Dictionary 132 (1993). The
Oxford English Dictionary defines “assist” as to “help [or] aid .
. . a person in doing something.” Oxford English Dictionary (2d
ed. 1989) (available at ). In addition,
“assist” means to “second, support; to succour; relieve,” as well
as to “stand or remain near,” to “stand by” or to “attend” someone.
Id. Yet another dictionary defines “assist” as “aid” or “help” or
to “give aid or support.” The American Heritage Dictionary of the
English Language 80 (New College Edition 1981). And one who
assists is an “assistant,” which also means “[h]olding an auxiliary
position” or “subordinate.” Id. The meaning of the verb “assist”
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is thus clear and uncontroverted: It means to provide supplemental
help or support to another in carrying out some task of mutual
involvement.
It is an elementary rule of statutory construction that "the
words of a statute will be given their plain meaning absent
ambiguity." Texas Food Indus. Ass'n v. United States Dept. of
Agric., 81 F.3d 578, 582 (5th Cir. 1996). The meaning of “assist”
is unambiguous, so we apply its plain meaning here. To satisfy the
requirements of § 111 and § 1114, therefore, Hubner, before or
during Reed’s assault and attempt on his life, must have been
supporting or acting as an auxiliary to Joyce while Joyce was
performing his official duties as an FBI agent.3
Applying the plain meaning of the words of the statute to the
facts of this case, Hubner could not have been “assisting a federal
officer” because nothing he did provided support for Joyce in the
performance of his official duties in any palpable way. Indeed, it
3
We note that any assistance that Hubner may have provided to
Joyce after Reed assaulted him is irrelevant to our inquiry. That
is, the statutory language has a temporal (and even
contemporaneity) element, in the sense that it speaks of the act of
“assisting” in the present tense. To restate the criminal offense
in context, it is: assaulting or attempting to kill a local police
officer who is assisting an FBI agent in the performance of his
official duties. The arrangement of words clearly suggests that
the defendant’s assault or attempt to kill, the local officer’s
assistance, and the duties being performed by the FBI agent must
all be, at least in the same reasonable sense, contemporaneous.
Evidence of post-arrest assistance by the DPD to the FBI in this
case -- that is, after the assault and attempt occurred and in the
absence of involvement by the FBI agent -- fails to satisfy the
statutory requirements.
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is far more nearly accurate to say that it was Joyce who was
“assisting” Hubner, by traveling to the scene to lend his support
to Hubner in the post-arrest investigation.
We emphasize that we are deciding a sufficiency of evidence
question. Each case will rest on its own facts. We do not hold
that federal officers must in all cases be the principal agents in
a law enforcement action to sustain a conviction under § 111 and §
1114, or even that they must in every case be at the scene of the
crime. That will depend on the facts of the particular case. We
only make clear that for a “person” to be “assisting” a federal
officer, there must at least be some evidence that, at the time
relevant to the assault or attempt to kill, there was some mutual
contemporaneous involvement from which a fact-finder can find as an
evidentiary fact -- not as theory -- that the person on whom the
assault or attempt was made was assisting the federal officer in
the performance of his official duties. On the evidence in the
record before us in this case, such assistance was lacking.4
4
The government argues, based on our decision in United States v.
Smith, 296 F.3d 344, 346-48 (5th Cir. 2002), that Hubner was in
fact assisting Joyce even though Joyce was not on the scene when
Reed assaulted and attempted to kill Hubner. In Smith, this
Court’s panel affirmed the defendants’ convictions under 18 U.S.C.
§ 1114 based on two factors: 1) that FBI agents learned of the
robbery and joined the pursuit before the shots were fired --
though it is not clear from the opinion, we surmise that the
agents, in their chase vehicle, were physically present during the
shooting; and 2) that the DPD and FBI regularly pursued
investigations together under a joint task force. Id. at 347.
In Smith the FBI agents in charge of the investigation heard
about the bank robbery, left their offices to investigate, and
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In sum, the insightful district court was correct in finding
that the evidence is insufficient for a reasonable jury to conclude
that all the elements of the crimes at issue were established
beyond a reasonable doubt with respect to Hubner’s assistance of
Joyce.5
As there are no remaining federal officers Hubner could have
assisted, we affirm the district court’s judgment of acquittal.
III
Reed has raised two issues on cross-appeal. As a result of
our resolution of the government’s appeal by affirming the district
court, we need not address these issues because Reed now stands
acquitted of the appealed charges.
IV
For the foregoing reasons, the district court’s judgment is
eventually joined the chase. The DPD acted in full cooperation
with the FBI -- who were apparently present during the vehicular
pursuit -- and the defendants were only charged for attempted
murder in connection with shootings that occurred during the FBI’s
active involvement.
5
The government alternatively asks us to reinstate the jury
verdicts because Hubner was at least assisting his fellow Dallas
policeman, Westphalen, when Reed assaulted and attempted to kill
Hubner. This argument hinges on Westphalen’s status as a member of
the joint FBI-DPD task force; the government argues that Westphalen
was exercising his task force duties and consequently he was a
“federal officer” for the purposes of §§ 111 and 1114.
The government’s argument fails, if for no other reason, because
it ignores the reasoning behind our precedents, which have only
considered state law enforcement officials “federal officers” when
the state officers were both cooperating with and under the control
of federal officials, see, e.g., United States v. Hooker, 997 F.2d
67, 74 (5th Cir. 1993), and that is not the case here.
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AFFIRMED.
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