Friendly, Smith and Anderson, Circuit Judges.
Joel Ulan appeals from his conviction for assaulting and interfering with U.S. Deputy Marshal William B. Gallinaro in the performance of the Marshal's official duties. The jury could have found from the evidence that the events leading up to the commission of the offense and the facts of the offense itself were substantially as follows.
On May 27, 1968 Edward Oquendo, who had been convicted of refusing to be inducted into the Armed Services, surrendered himself in the courtroom of the United States District Court in the Eastern District of New York, before Judge Joseph Zavatt, to commence the service of the five year sentence which had been imposed upon him. There were also present in the courtroom well over a hundred persons, including Ulan, who were sympathetic to Oquendo. Eight or ten deputy U.S. Marshals had been assigned to duty there. When the court remanded Oquendo to the custody of the Marshal, Oquendo raised his right arm with fist clenched. Immediately nearly all of the spectators, exclusive, however, of the appellant Ulan, stood up and began a noisy demonstration, shouting insulting and derogatory names and comments at the court. Judge Zavatt then ordered the Marshals to clear the courtroom and escort the demonstrators outside of the courthouse.
After a substantial number had left the courtroom, Ulan joined the stream of departing demonstrators who, escorted by the Marshals, went down a flight of stairs and out through an inner and outer set of doors and the vestibule between. As Ulan was about to go out one of the outer doorways, a demonstrator, identified only as a stocky fellow, turned around, when two or three feet from the outer doors, and faced Deputy Marshal Gallinaro, who was ushering the demonstrators out and encouraging them to leave. The stocky fellow expressed an intention not to leave and asked the Deputy Marshal what he would do about it. The Marshal said he would have to arrest him; and, when the man said he would not leave, the Deputy Marshal took him by the arm and told him he was under arrest. Meanwhile, Ulan, who had reached the street, heard the confrontation and returned inside to a point just back of the stocky fellow and asked Deputy Marshal Gallinaro in an abusive tone what he was doing. When Gallinaro told the stocky fellow that he was under arrest, Ulan said, "You're not arresting anyone" and struck Gallinaro in the face and grabbed and pulled him by the necktie. Other demonstrators had joined the fracas and with Ulan pulled the Deputy Marshal into the crowd. Gallinaro had seized Ulan by the arm and in the ensuing melee dragged him down as he, Gallinaro, fell. At the time there were three other Deputy Marshals in the area and in a short time they extricated Gallinaro and arrested and confined Ulan.
The sole issue on appeal concerns the correctness of that portion of the trial judge's instructions to the jury, to which Ulan excepted, that it was not an essential element of the offense charged, and the Government was, therefore, not required to prove, that the defendant knew Deputy Marshal Gallinaro was a federal officer at the time of the incident.
This instruction by the court was based upon United States v. Lombardozzi, 335 F.2d 414 (2 Cir.), cert. denied, 379 U.S. 914, 85 S. Ct. 261, 13 L. Ed. 2d 185 (1964); United States v. Montanaro, 362 F.2d 527 (2 Cir.), cert. denied, 385 U.S. 920, 87 S. Ct. 233, 17 L. Ed. 2d 144 (1966), and other cases in this Circuit which have followed them, which hold that scienter, i.e. knowledge on the part of the accused that it was a federal officer that he was assaulting, is not an essential element of the offense which the Government must prove.
The appellant recognizes the holding of these cases but asserts that there is an exception to the rule to which this court referred in the recent case of United States v. McKenzie, 409 F.2d 983 at page 986 (2 Cir. 1969), where it said, by way of dictum, "We believe the rule urged by McKenzie, and adopted by the Sixth Circuit in United States v. Rybicki, 403 F.2d 599 (6 Cir. 1968), has much to commend it." In Rybicki the accused had resisted the seizure of his truck by two officers of the Internal Revenue Service who were endeavoring to collect an income tax which he owed. The Sixth Circuit reversed Rybicki's conviction on the ground that the trial court had committed plain error in refusing to charge that scienter was an essential element of the offense of resisting the seizure by federal officers. The McKenzie case was one of resisting arrest and the defense was that, although in cases of an assault upon a federal officer, as in Lombardozzi, scienter is not an essential element of the offense, in cases of resisting arrest, as in a defendant's resisting seizure of his property, scienter is an essential element. The court in McKenzie did not order a new trial but affirmed the conviction because no exception had been taken to the charge and the defendant had conceded that he knew the persons seeking to take him into custody when he resisted them were, in fact, federal officers.
In its decision in Rybicki the court sought to work out a formula which gave recognition to two kinds of violations of 18 U.S.C. § 111: one which did not require that scienter be included as an essential element of the offense and the other which did. It cited Lombardozzi and Montanaro as examples of the first kind and held that the distinguishing characteristic of this type of § 111 offense could be determined "by the fact that the offenses there involved would have been crimes regardless of the person against whom they were committed." the court considered the case before it as of the second type, which did require scienter as an essential element. It said, "Here, if the car 'thief' had not been an officer acting in an official capacity, Rybicki would have had the right to threaten and use reasonable force to prevent the theft of his property."
The statute itself suggests no such difference; and, even if it were an acceptable anomaly to describe a statutory offense as sometimes possessing a particular number of essential elements (such as the four described in the charge of the court in the present case) and sometimes one more, this definition which purports to distinguish Lombardozzi and Montanaro is difficult to apply.
This court in its dictum in McKenzie appears to have adopted the interpretation of the Rybicki rule offered by McKenzie's counsel, which was that when the violation of § 111 is an assault, scienter is not an essential element, but where the violation is one of resisting arrest, it is. McKenzie classified both Lombardozzi and Montanaro as "assault cases." While this is true of Lombardozzi because the assaulted F.B.I. agent was not seeking to make an arrest, the assaults of which Montanaro was charged and convicted were made by him upon federal agents who were attempting to arrest him. A great difficulty in trying to apply such a distinction stems from the fact that most cases of resisting arrest include an assault by the subject of the arrest against the person endeavoring to make it.
Moreover, the Rybicki court's definition of those interferences which do not require scienter as an essential element as those which "would have been crimes regardless of the person against whom they were committed" could have included Rybicki himself. Threatening bodily harm to another with a double barrelled, apparently loaded, shotgun as Rybicki did, is a crime in most jurisdictions, even if the persons threatened are Internal Revenue Agents, unless the attendant circumstances make the use of force, which would otherwise be criminal, defensible and justified. The pertinent question, therefore, is what circumstances justify the use of force in preventing a federal marshal or other specified officer or employee*fn1 from performing his duties?
In the light of the rationale in Lombardozzi, a lack of scienter cannot be given the effect of an absolute defense to a § 111 violation. There can, however, be a combination of circumstances which may provide a defendant, in either an assault or resisting arrest case, with a defense through justification for his use of force. In going forward to present evidence of such circumstances, there is no doubt that a defendant may show that he had no knowledge that the person he assaulted or resisted was a federal officer or employee acting in the performance of his official duties. The Government, on which the over-all burden of proof rests, may, of course, offer evidence in rebuttal.